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Crawford v. Washington: a critique.

INTRODUCTION
I. THE GOALS OF CROSS-EXAMINERS
II. THE TWO-PART TEST
 A. Hearsay and Confrontation
 B. Confrontation and Single Defendants
III. CRAWFORD'S IMPACT
 A. A New Test
 B. Crawford's Impact on Single Defendants
 C. Crawford's Impact on Multiple Defendants
IV. UNANSWERED QUESTIONS REGARDING TESTIMONIAL STATEMENTS
 A. Definitional Uncertainties
 B. The Unavailability Requirement
 C. The Adequacy of the Opportunity to Cross-Examine the Declarant
V. NONTESTIMONIAL STATEMENTS AND CONFRONTATION
 A. Business Records
 B. Coconspirators' Declarations
 C. Declarations Against Interest
VI. EMERGING HEARSAY EXCEPTIONS: STATEMENTS BY CRIME VICTIMS
VII. REGULATING NONTESTIMONIAL STATEMENTS--OPTIONS


INTRODUCTION

Understanding the use of the Confrontation Clause in criminal trials requires appreciating the role of the jurors. Their role is to reconstruct a historical event from the evidence presented by the parties. The jurors have been called upon to participate in the trial because the parties disagree about what happened. The purpose of the trial is to afford each side an opportunity to persuade the jurors to accept its version of what occurred. The jurors' reconstruction of what happened will determine whether the accused is held accountable or is exonerated.

Three aspects of American jury trials are especially pertinent in understanding the role of the jurors. First, how a trial unfolds depends on the initiative of the parties. It is the parties who will decide which witnesses to call, the order in which to call them, the questions that the witnesses will be asked to answer, and which nontestimonial evidence will be offered. (1) The second aspect is related to the adversarial nature of jury trials. Each side can be depended upon to produce the most helpful information available to reconstruct its version of the past event. (2)

Finally, the rules of evidence play a crucial part in shaping what parties can and cannot do. The rules place limits or an outright ban on the information the parties may seek to place before the jurors. The rules, for example, ban irrelevant evidence, exclude some relevant evidence in order to promote other policies (e.g., protect privileged information), ban evidence the legislature deems unduly prejudicial (e.g., character evidence), and place limits on what parties can do to support the credibility of their witnesses and to attack the credibility of their opponent's. The rules also restrict the use of evidence the legislature considers unreliable. Hearsay is the classic example.

While the rules do seek to exclude unreliable evidence, they cannot guarantee that all evidence presented to the jurors will be reliable. Witnesses sometimes lie: at other times, they might be mistaken. What the rules can and should do is give the parties an opportunity to present the jurors with reasons why they should not rely on the other side's evidence. In the case of testimony, the parties are given a powerful tool: the right to cross-examine adverse witnesses under oath in the presence of the jurors. (3)

An American jury trial, then, is predicated on the assumption that jurors are most likely to reconstruct a past event accurately if the parties are given an opportunity to demonstrate to the jurors why the evidence presented by the other side should be rejected. Since cross-examination of witnesses is essential in exposing flaws in the testimony given on direct examination, confidence in the accuracy of a jury verdict is necessarily undermined whenever a party is deprived of the opportunity to cross-examine the adversary's witnesses under oath in the presence of the jurors.

This insight has serious implications in criminal trials. Although the right of criminal defendants to confront their accusers can and does have more than one goal, from an instrumental perspective it must mean that the accused should be accorded an opportunity to cross-examine his accusers under oath in the presence of the jurors. That, however, may not always be possible. For example, the person accusing the defendant might be dead, and unless his deathbed statement identifying the accused as his killer is admitted at the trial, the accused might go free. Framers of the rules of evidence, whether legislators or judges, have struggled with this and similar problems, and arrived at different compromises reflected in the exceptions to the hearsay rule. But in doing so, state legislators and judges, in whose courts most criminal trials take place, were free to consider the issues without federal constitutional constraints.

That, however, changed in 1965 when in Pointer v. Texas the U.S. Supreme Court held that the Sixth Amendment's right of confrontation applies to state criminal trials as well as federal ones. (4) Since that time, the Court has tried to define the circumstances under which statements can be offered by the prosecution against the accused without having to accord the accused an opportunity to cross-examine the declarant. Eventually, the Court developed a two-part test: (1) if the statement offered against the defendant fell within a "firmly rooted" exception to the hearsay rule, cross-examination could be done away with; (2) but if the statement did not fall into such an exception, then cross-examination could be dispensed with only if the prosecution convinced the judge that the statement offered was reliable. (5)

In Crawford v. Washington, (6) the Court abandoned the two-part test, at least when the statement offered against the defendant qualifies as a "testimonial statement." (7) When it does, then the prosecution must either produce the declarant for cross-examination at the trial or demonstrate the declarant's unavailability to appear as a witness and show that the accused had an opportunity prior to the trial to cross-examine the declarant about the statement offered at the trial. (8) The Court, however, declined to rule on whether nontestimonial statements remain subject to confrontation scrutiny. (9)

The major purpose of this Essay is to assess Crawford's efficacy in guaranteeing criminal defendants the right to test the reliability of the prosecution's witnesses' testimony through cross-examination under oath in the presence of the jurors. Part I describes the goals of cross-examiners and shows how the hearsay rule gives substance to the right of cross-examination by banning the use of out-of-court statements when offered to prove the matters asserted by the declarant. Part II traces the Court's development of the two-part confrontation test and the test's rejection in Crawford in the case of testimonial statements. Part III examines the impact of Crawford on the Court's leading confrontation cases. Part IV discusses important questions which Crawford leaves unanswered when the statements offered might qualify as testimonial. Part V identifies some nontestimonial statements which from a defense perspective ought to be tested through cross-examination. It also asks whether the Court should nonetheless regulate them under the Confrontation Clause and, if so, whether in view of Crawford any test remains that the Court could or should employ in scrutinizing these statements. Part VI focuses on emerging hearsay exceptions for statements by crime victims and examines their status under Crawford. A final Part explores options the Court could use if it chooses to regulate nontestimonial statements under the Confrontation Clause.

I. THE GOALS OF CROSS-EXAMINERS

Assume that a defendant is prosecuted for reckless driving on the theory that he injured the victim, another driver, when he ran a red light and struck her car. The victim testifies that, as she entered the intersection, the light facing her was green and that moments later the defendant's car struck her on the driver's side. The victim calls a motorist who testifies that he and his spouse were parked at the intersection facing the defendant and that at the time of the collision the spouse told him that the light facing them was red.

The victim's testimony alone would make out a prima facie case and allow the state to get to the jury' on the issue of whether the defendant committed the offense. With the motorist's testimony, the state's chances of persuading the jury to return a guilty verdict are enhanced significantly. But if the defendant contradicts the victim's testimony ("I had the green light.") and precludes the motorist from testifying, the outcome is cast into doubt. Indeed, if under these circumstances the jurors cannot decide whether to believe the victim or the defendant, they would be bound to acquit the defendant since the state has the burden of proving each element of the offense beyond a reasonable doubt. (10) To the defendant, then, preventing the motorist from testifying is crucial.

Over a hearsay objection, should the motorist be allowed to testify that his spouse told him that the light facing them was red? The answer is no if the evidence is being offered to establish the color of the light facing them. In the words of the Federal Rules of Evidence, the motorist's testimony is hearsay because it consists of a "statement, other than one made by the declarant while testifying at the trial or hearing" (i.e., what the spouse told the motorist about the color of the light prior to the trial) "offered in evidence to prove the truth of the matter asserted" (i.e.. that the color of the light facing the motorist and his spouse was red shortly before the collision). (11)

Why should the hearsay rule disfavor the use of the spouse's statement? One reason is that receiving hearsay through a witness other than the declarant deprives the party opposing the hearsay from cross-examining the declarant. Cross-examiners generally have one of two goals: (1) to persuade a witness to recant the testimony given on direct and, instead, affirm the cross-examiner's theory of the case, or (2) failing that, to discredit the witness's account on direct by impeaching the witness's credibility.

An example of the former would be a concession by the spouse on cross-examination that, indeed, the color of the light facing her was really green. That doesn't happen often. More likely, she might concede that, although she thinks the light was red, she can't be absolutely sure because the sun was in her eyes. But regardless of which goal the cross-examiner pursues, one matter is clear: the cross-examiner cannot pursue either unless the motorist's spouse is produced for cross-examination under oath in the presence of the fact finder. It is her ability to perceive and recall the color of the light accurately, as well as her willingness to tell the truth about what she saw, that matters to the cross-examiner. The motorist's abilities in these respects are much less important, since he did not see the light. Put another way, even if the motorist correctly heard what his spouse said about the color of the light and even if he recalls her statement correctly and relates it accurately to the jury, none of that would matter if his spouse either lied or was mistaken about the color of the light. The hearsay rule thus forces parties to focus on evidence about what people saw and heard, and not about what they heard others say they saw or heard. (12)

Some authorities link the hearsay rule to goals that go beyond the concessions that might be obtained on cross-examination. In their view, the use of hearsay violates the ideal conditions under which testimony should be received: witnesses should testify under oath in the fact finder's presence and be subject to cross-examination. (13) The oath is believed to impress witnesses with the importance of testifying truthfully. (14) Having witnesses testify before the fact finders enables them to take the witnesses' demeanor into account in assessing their credibility. (15) And subjecting witnesses to a searching cross-examination helps the opposing party expose inadvertent as well as conscious inaccuracies in perception, recollection, and narration. (16)

Sometimes hearsay is described as "inherently untrustworthy." What is meant is that hearsay should not be relied upon to reach factual decisions in the absence of the kind of cross-examination that has been described. The hearsay rule, however, does not proceed on the assumption that the hearsay declaration (in our example, what the spouse told the motorist) should be received in evidence so long as the opposing party is given a chance to call and cross-examine the hearsay declarant (the spouse); on the contrary, the rule makes the declaration inadmissible. If the state wants to establish the color of the light facing the motorist's spouse at the time of the collision, then, in the absence of hearsay exceptions, the state must do so by offering the spouse as a witness on that point and not by offering the spouse's statement to her husband or to anyone else.

II. THE TWO-PART TEST

A. Hearsay and Confrontation

As the example demonstrates, the chief goal of the hearsay rule is to enhance the fact-finding process by excluding certain declarations whenever the declarants cannot be subjected to cross-examination. The rule achieves this goal by permitting the opposing party to object to the use of out-of-court statements that are offered to prove the truth of the matter asserted. Since the use of hearsay can deprive the opponent of an opportunity to challenge the credibility of the hearsay declarant, the rule proceeds on the assumption that cross-examination is vital to assuring the reliability of evidence.

The nature of testimony supports that assumption. In evaluating the testimony of witnesses, the fact finder should take into account the witnesses' abilities to perceive the subject matter of their testimony, to recall those perceptions, and to narrate them accurately at the hearing. (17) Flaws in these abilities need to be exposed, a task that falls upon the party opposing the witness. That party is given a tool calculated to do just that the right to cross-examine the witness under oath in the presence of the fact finder. The hearsay rule gives substance to that right by allowing the opposing party to object whenever an out-of-court statement is offered for the truth of the matter stated. In the absence of exceptions, the rule forces the proponent of the statement to produce the testimonial sources so that they may be cross-examined under oath in the presence of the fact finder. (18)

In California v. Green the U.S. Supreme Court recognized that the hearsay rule and the Confrontation Clause protect similar values by ensuring that witnesses adverse to the accused testify under oath, subject to cross-examination, and in the presence of the fact finder. (19) The Court, however, rejected the proposition that "the Confrontation Clause is nothing more or less than a codification" (20) of the hearsay rule and its exceptions:
 Our decisions have never established such a congruence; indeed, we
 have more than once found a violation of confrontation values even
 though the statements in issue were admitted under an arguably
 recognized hearsay exception.... The converse is equally true:
 merely because evidence is admitted in violation of a
 long-established hearsay rule does not lead to the automatic
 conclusion that confrontation rights have been denied. (21)


But despite the Court's protestations, the Court's pre-Crawford decisions eventually evinced a significant congruence between the right of confrontation and the hearsay rule and its exceptions. The confrontation analysis eventually adopted by the Court dispensed with the cross-examination of the hearsay declarant when the hearsay received against the accused was offered under a "firmly rooted" exception (22) or, if offered under a novel exception, the prosecution took the additional step of demonstrating the reliability of the hearsay. (23) The Court, however, continued to distinguish between hearsay offered against a defendant tried alone and hearsay offered against a defendant tried jointly with other defendants. This distinction retains some validity after Crawford.

B. Confrontation and Single Defendants

Cases involving the use of hearsay statements against a defendant tried alone caused the Court the least difficulty. In Green the defendant was prosecuted for furnishing marijuana to a minor. At the preliminary hearing, the minor identified the accused as his supplier. At the trial, the minor claimed that he was unable to recall who supplied him with the marijuana because at the time he received the marijuana he was on LSD.

The prosecution then offered the minor's preliminary hearing testimony. The minor's former testimony was admitted under the theory that it constituted a prior statement that was inconsistent with the minor's trial testimony. Under state law, the testimony was admissible to impeach the minor as well as to prove the truth of what the minor had stated. The Court rejected a confrontation objection to the use of the evidence: at the trial, the accused was given an opportunity to cross-examine the minor about his earlier statement while the minor was under oath and in the presence of the jurors. (24) Accordingly, the defendant had been given an opportunity to provide the jurors with an adequate basis for evaluating the witness's testimony.

Though the issue was not before it, the Court noted that the minor's preliminary hearing testimony identifying the accused as his supplier would have been admissible if the minor had been unable to testify at the trial. (25) That position was confirmed in Ohio v. Roberts, (26) where the Court upheld the use against the accused of the preliminary hearing testimony of a witness who was unavailable to testify at the trial. Emphasizing that "the prosecution must either produce, or demonstrate the unavailability, of the [hearsay] declarant," (27) the Court held that the statement of an unavailable declarant was admissible "if it bears adequate 'indicia of reliability.'" (28) That reliability "can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." (29)

Notions that the Confrontation Clause required the prosecution to produce or show the unavailability of the hearsay declarant in all cases were dispelled in United States v. Inadi. (30) In that case, the accused was prosecuted for manufacturing and distributing a controlled substance. The accused objected on confrontation grounds to the introduction of a coconspirator's declaration implicating the accused that satisfied the evidentiary foundation for coconspirators' statements under the Federal Rules of Evidence. Under the Federal Rules, the government did not have to establish the declarant's unavailability as a witness. (31) In light of Roberts', the accused claimed that the statement was inadmissible absent a showing by the prosecution of the declarant's unavailability to testify. The Court rejected this reading of Roberts. (32) In the Court's view, coconspirators' declarations derive much of their value from the fact that they are made while the conspiracy is in progress. They "provide evidence of the conspiracy's context that cannot be replicated, even if the declarant testifies to the same matters in court." (33) Because in the Court's view such declarations are reliable, their use does not violate the Sixth Amendment even if the declarant is not produced for cross-examination. Indeed, the Court maintained that their use is consistent with the "'Confrontation Clause's very mission' which is to 'advance "the accuracy of the truth-determining process in criminal trials.'" (34)

In White v. Illinois the Court reaffirmed the limited reach of Roberts: "Roberts stands for the proposition that unavailability analysis is a necessary part of the Confrontation Clause inquiry only when the challenged out-of-court statements were made in the course of a prior judicial proceeding." (35) The Court, moreover, made explicit what had been implied in Inadi: "where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied." (36) Excited utterances and statements made in the course of receiving medical care, in the Court's view, met this test. (37)

Only where the prosecution relied on a comparatively novel exception did the Court require the prosecution to offer evidence showing that the hearsay offered was reliable. In Idaho v. Wright, (38) the question was the admissibility, over a confrontation objection, of statements which a child made to a doctor and in which the child claimed that the defendant had abused her. Because the child was incompetent to testify under state law, the statements were admitted pursuant to a "residual exception." This innovative approach permits the use of hearsay not specifically allowed by established rules but having "equivalent circumstantial guarantees of trustworthiness." (39) The Court held that the use of the statements violated the accused's confrontation rights. (40) The residual exception, according to the Court, was not a firmly rooted exception to the hearsay rule. Consequently, such evidence could be used only upon a showing of particularized guarantees of trustworthiness. (41) In making this showing, the prosecution could rely on the circumstances "that surround the making of the statement and that render the declarant particularly worthy of belief." (42) But the prosecution could not rely on other evidence that corroborated the truth of the hearsay statement: "To be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial." (43)

In sum, then, by 2004 the Court was willing to dispense with cross-examination whenever the evidence against the accused was received under a firmly rooted exception to the hearsay rule. Only when the prosecution did not rely on an established exception would the prosecution be required to show that the statement was reliable. Thus, despite the Court's protestations, the Court's opinions did evince a significant, though not perfect, congruence between the Confrontation Clause and the hearsay rule and its exceptions.

III. CRAWFORD'S IMPACT

A. A New Test

That congruence no longer exists. In Crawford v. Washington, (44) the Court announced a new test to determine the admissibility under the Confrontation Clause of hearsay offered against the accused. Crawford was convicted of assault and attempted murder. Over his confrontation objection, the prosecution was allowed to offer a recorded statement his wife made to the police in which she appeared to contradict Crawford's claim that he attacked the victim in self-defense. Since the wife herself was under suspicion of facilitating the assault, her statement was admitted for its truth under Washington's hearsay exception for declarations against penal interest. (45) This exception required the prosecution to show that the declarant was unavailable to testify, (46) and due to that unavailability, Crawford did not have an opportunity to cross-examine his wife about her out-of-court statement. The Court reversed Crawford's conviction.

Crawford changes the Court's previous confrontation analysis in a number of ways. First, if the hearsay offered against the accused qualifies as a "testimonial statement," then it no longer matters whether the hearsay falls within a "firmly rooted" exception to the hearsay rule; nor does it matter whether the statement falls under a novel exception that bears "particularized guarantees of trustworthiness." (47) Crawford disapproves of Roberts to this extent. (48)

Second, if the hearsay offered against the accused does not qualify as a "testimonial statement," then it is unclear whether its use violates the Confrontation Clause. Although the Court acknowledged that its Crawford analysis casts doubts on whether the use of such hearsay violates the Clause, the Court reserved the question for another day. (49) Thus, Roberts's confrontation analysis may still govern the use of this kind of hearsay. Such an outcome, according to the Court, would be "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." (50)

Third, if the prosecution offers "testimonial statements" against the accused, the accused's confrontation rights are violated unless the out-of-court declarant is produced for cross-examination under oath before the fact finder. (51) If the out-of-court declarant is produced, then the Confrontation Clause "places no constraints at all on the use of his prior testimonial statements." (52) But if the declarant is not produced, a confrontation violation will occur unless (1) the declarant was unavailable to testify, and (2) the accused had "a prior opportunity" to cross-examine the out-of-court declarant about the testimonial statement. (53) Since prior to the trial Crawford was not afforded an opportunity to cross-examine his wife about her statement to the police, the Court upheld his confrontation claim.

Fourth, Crawford does not bar the use of testimonial statements if offered for a purpose other than establishing the truth of the matter stated or asserted. (54) The Confrontation Clause applies only to out-of-court statements offered for a hearsay purpose.

Why are testimonial statements subject to scrutiny under the Confrontation Clause? According to the Court, in adopting the Confrontation Clause the Framers were concerned with excluding from the trial the kind of ex parte witness statements taken by magistrates and offered against the accused in civil law jurisdictions. (55) Although the Court declined to provide a comprehensive definition of "testimonial statements," the Court held that at a minimum the term applies "to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (56)

In a footnote, the Court provided a justification for singling out these kinds of statements for scrutiny under the Confrontation Clause:
 Involvement of government officers in the production of testimony
 with an eye toward trial presents unique potential for
 prosecutorial abuse--a fact borne out time and again throughout a
 history with which the Framers were keenly familiar. This
 consideration does not evaporate when testimony happens to fall
 within some broad, modern hearsay exception, even if that
 exception might be justifiable in other circumstances. (57)


Statements in business records and statements in furtherance of a conspiracy do not fall within the definition of "testimonial statements." (58) Whether their use is regulated at all by the Confrontation Clause (either by Roberts' or by some other test) is a question that must await another day.

B. Crawford's Impact on Single Defendants

Although Crawford is a marked departure from the Court's previous confrontation approach, Crawford would not change the result in many of the leading confrontation cases that do not involve joint defendants. The result in Green would remain unchanged since in that case the hearsay declarant appeared at the trial and was subject to cross-examination under oath before the jury about his out-of-court statements. Neither would Crawford appear to change the outcome in Roberts. Although the hearsay declarant in Roberts did not appear at the trial, the prosecution demonstrated her unavailability as a witness, and the accused had been afforded an opportunity at the preliminary hearing to cross-examine her under oath about the statements offered at the trial.

Significantly, Crawford also would not affect Inadi. A coconspirator's declaration in furtherance of the conspiracy is not the kind of "testimonial statement" contemplated by the Confrontation Clause, at least in the absence of proof that the government was somehow involved in its production with an eye toward using the declaration at trial. If the Court retains the Roberts test to determine the admissibility of coconspirators' declarations over a confrontation objection, Inadi will remain good law. It will likewise remain good law if the Court chooses to limit the Clause only to the use of testimonial statements.

Crawford, however, might overrule White v. Illinois. White was convicted of a number of crimes, including sexually assaulting a four-year-old girl. He appealed on the ground that the trial judge erroneously overruled his confrontation objections to statements the victim made to her babysitter, her mother, a police officer, a nurse, and a doctor identifying the accused as her assailant. The statements to the babysitter, mother, and officer were admitted under the Illinois hearsay exception for excited utterances; the statements to the nurse and the doctor, under the Illinois hearsay exception for statements made to medical personnel for purposes of medical diagnosis or treatment insofar as reasonably pertinent to that diagnosis or treatment. (59) Because the prosecution did not produce the victim, the accused was unable to cross-examine her about her out-of-court statements. The Court nonetheless affirmed the accused's convictions, holding that the Confrontation Clause was satisfied where the proffered hearsay had sufficient guarantees of reliability to come within firmly rooted exceptions to the hearsay rule. (60)

Of the statements admitted in White, the one most likely to qualify as a "testimonial statement" under Crawford was the victim's statement to the police officer. Indeed, in Crawford the Court singled out this statement in characterizing White as the "[o]ne case arguably in tension with the rule requiring a prior opportunity for cross-examination when the proffered statement is testimonial...." (61) The victim in White had made the statement to the officer approximately forty-five minutes after the attack, while the officer was questioning her alone in the kitchen of her home. (62) Although the Court declined to rule whether Crawford overruled White, (63) the statement to the officer appears to qualify as the kind of testimonial statement the Court had in mind when it referred to statements made in the course of police interrogations.

The Federal Rules of Evidence, like the Illinois rules, provide a hearsay exception for statements made for the purposes of medical diagnosis or treatment, or for describing medical history, including the cause of a medical condition, if the statements are reasonably pertinent to diagnosis or treatment. (64) California's exception is narrower. It applies only if, in addition, the statements were made by declarants under twelve describing an act or attempted act of child abuse or neglect. (65) Both exceptions, however, have been used to identify an accused as the perpetrator in child abuse prosecutions. (66) Whether statements offered under these exceptions qualify as "testimonial statements" is unclear. The answer may depend on whether the Court takes a categorical or case-by-case approach in determining whether the hearsay offered against the accused qualifies as a testimonial statement. If the Court takes a case-by-case approach, then whether a statement qualifies as a testimonial statement may depend on such factors as whether the dominant purpose for taking the statement was to diagnose or treat the patient as opposed to gathering evidence with an eye toward possible use at trial.

If the statements to the nurse and the doctor do not qualify as testimonial statements, then it is unclear whether their use is subject to scrutiny under the Confrontation Clause. Whether their use is regulated at all by the Confrontation Clause, either by Roberts' or by some other test, must, as the Court said, wait until another day.

C. Crawford's Impact on Multiple Defendants"

In Bruton v. United States (67) the Court reversed the robbery conviction of a defendant who had been implicated in the crime by his codefendant's extrajudicial confession. Because the codefendant did not take the stand at the joint trial and thus could not be cross-examined, the Court held that the admission of the codefendant's confession, even though offered only against the codefendant, deprived the defendant of his confrontation rights. (68)

Bruton does not require the exclusion of a nontestifying codefendant's confession when all references to the accused have been redacted and the jury warned to use the confession only against the confessing defendant. (69) And although Bruton applies to bench as well as jury trials, (70) Bruton does not require exclusion of the nontestifying codefendant's confession in bench trials when offered only against the confessing defendant. (71) Unlike jurors, judges are presumed capable of disregarding those portions of the nontestifying codefendant's confession implicating the defendant. (72) Such confessions are therefore admissible in California court trials. (73) Bruton error, moreover, can be avoided even in a joint trial by according the codefendants separate juries, with each jury being excused when necessary to avoid exposure to the inadmissible evidence. (74)

From a practical perspective, Crawford is consistent with Bruton. Confessions resulting from police interrogations qualify as "testimonial statements." (75) Accordingly, admitting a codefendant's confession to the police implicating the accused in the crime charged would violate Crawford as well as Bruton, unless the codefendant takes the stand and is subject to cross-examination by the accused. A codefendant who claims the privilege against self-incrimination and declines to take the stand is by definition unavailable as a witness. (76) If the codefendant exercises the privilege, then Bruton would preclude the use of the codefendant's confession against the accused. Crawford, however, would allow the prosecution to use the confession if the accused had previously been afforded an opportunity to cross-examine the codefendant under oath about the statements offered at the trial. But since that would be an extremely rare circumstance, Crawford's impact on Bruton is essentially theoretical.

Because judges are presumed capable of disregarding those portions of the nontestifying codefendant's confession implicating the accused in the crime charged, Bruton does not require exclusion of a nontestifying codefendant's confession in bench trials. Crawford, however, does not distinguish between bench and jury trials. Still, Crawford should not be implicated in bench trials when the confession is offered not against the accused, but only against the confessing codefendant. In contrast, in jury trials a limiting instruction directing jurors to consider the confession only against the confessing codefendant will not prevent Bruton error. Jurors, as the Court acknowledged in Bruton, cannot be expected to abide by such an instruction. (77) As long as the Court continues to adhere to this view of jurors, Crawford should not overturn this aspect of Bruton.

A more important concern is whether Crawford prevents prosecutors from characterizing a nontestifying codefendant's confession as a declaration against penal interest in order to avoid Bruton's limitations. In Lilly v. Virginia (78) the accused was charged with a number of offenses, including robbery and murder. An accomplice called by the state declined to testify on Fifth Amendment grounds. The state then offered the accomplice's confession, in which he admitted participating in the robbery but claimed that the accused was the one who committed the killing. The confession was received against the accused as a declaration by the accomplice against penal interest under Virginia's evidence rules.

The accused appealed his convictions on the ground that admitting the confession violated his confrontation rights. The U.S. Supreme Court agreed. Noting that it is a federal question whether out-of-court statements fall within a firmly rooted hearsay exception for Confrontation Clause purposes, a plurality held that accomplices' confessions that inculpate a criminal defendant are not within a firmly rooted exception. (79) The admissibility of these confessions depends on whether the prosecution can demonstrate that they possess such "particularized guarantees of trustworthiness" that adversarial testing through cross-examination would add little, if anything, to their reliability. (80)

Lilly did not implicate Bruton directly because the accused and the accomplice were tried separately. Still, evidence rules that allow an accomplice's declaration against penal interest to be offered against a defendant can provide prosecutors with a means to avoid Bruton. If such a declaration can be offered when reliable, then it would appear to be immaterial whether the defendant is tried alone or with the accomplice. In People v. Greenberger (81) the California Court of Appeal held that declarations against penal interest could be offered against a defendant if the judge found that the declarations were made under circumstances that render them particularly worthy of belief. In making this determination, the trial judge must look to the totality of the circumstances in which the declarations were made, including whether the declarant spoke from personal knowledge, the declarant's motivation in making the statements, and the words actually used by the declarant. (82) As the court explained:
 [T]he least reliable circumstance is one in which the declarant
 has been arrested and attempts to improve his or her situation
 with the police by deflecting criminal responsibility onto
 others.... [T]he most reliable circumstance is one in which the
 conversation occurs between friends in a noncoercive setting that
 fosters uninhibited disclosures.... When examining what was
 actually said by the declarant special attention must be paid to
 any statements that tend to inculpate the nondeclarant. This is
 so because a statement's content is most reliable in that portion
 which inculpates the declarant ... [and] least reliable in that
 portion which shifts responsibility.... This is not to say that a
 statement that incriminates the declarant and also inculpates the
 nondeclarant cannot be specifically disserving of the declarant's
 penal interest. Such a determination necessarily depends upon a
 careful analysis of what was said and the totality of the
 circumstances. (83)


The Lilly and Greenberger approaches have not survived Crawford where the hearsay offered against the accused qualifies as a testimonial statement. In addition to prohibiting the use of the declaration against interest introduced against Crawford, the Court cited numerous decisions approving the use of accomplices' confessions under Lilly as the principal reason for disapproving of the Roberts test when testimonial statements are offered against the accused. (84) As the Court emphasized, accomplice confessions implicating the accused are precisely the kind of "core testimonial statements that the Confrontation Clause plainly was meant to exclude." (85)

Even prior to Crawford, Lilly was not of much help to federal prosecutors trying defendants jointly or alone. In Williamson v. United States the U.S. Supreme Court held that only those statements that are disserving of the declarant's interest are admissible under the federal hearsay exception for statements against interest. (86) Accordingly, a codefendant's statement, "I am taking the cocaine to Atlanta for Williamson," could not be offered in a federal prosecution against Williamson, even if the statement qualifies as a declaration against the declarant's penal interest. (87) Neither should such a declaration be admissible against Williamson in a California prosecution. In People v. Leach the California Supreme Court, like the U.S. Supreme Court, limited California's hearsay exception for declarations against interest to those statements disserving only of the declarant's interest. (88) Given these statutory limitations, federal and California criminal defendants should not have to rely on Crawford to exclude declarations against penal interest that implicate them in the crime charged. Crawford nonetheless will be useful to defendants in jurisdictions which do allow the use of such declarations as well as in jurisdictions, such as California, where some of the lower appellate courts have ignored their highest court's limitations on such declarations' use. (89)

Some California cases hold that the Leach limitation can be circumvented where the portion of the declaration against interest inculpating the accused itself falls within another hearsay exception--for example, the exception for party admissions. (90) This approach is appealing because party admissions do not implicate the Confrontation Clause. Nonetheless, these decisions may not have survived Crawford if the declaration as a whole is viewed as the testimonial statement. In this instance their use by the prosecution still depends on the admissibility over a confrontation objection of the out-of-court declaration of which the party admission is a part. Under Crawford, if the declaration qualifies as a testimonial statement, the fact that it qualifies as a firmly rooted exception is no longer relevant in determining whether the accused's confrontation rights have been violated. The same reasoning should apply to cases such as White. There, the child's statement to the police officer identifying the accused as her assailant qualified as an excited utterance. As in Crawford, however, that fact should not be used to justify the admission of a statement that meets the definition of a testimonial statement. Otherwise, the Court will become embroiled once again in the question of whether satisfying the requirements of a hearsay exception, especially a novel one, should justify dispensing with the cross-examination of the hearsay declarant. To avoid this pitfall, where testimonial statements are at issue, the Court will not "mine the record in search of indicia of reliability." (91) In these circumstances, "the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." (92)

IV. UNANSWERED QUESTIONS REGARDING TESTIMONIAL STATEMENTS

From a defense perspective, the Roberts-Wright line of cases is deeply troubling. A doctrine that equates confrontation with the hearsay rule and its exceptions offers little or no protection to the accused. The number of hearsay exceptions has exploded during my lifetime. Though I could be mistaken, I recall thirteen when I was a law student in the late 1960s. By the time the Federal Rules of Evidence were adopted in 1975, the exceptions had more than doubled. (93) Today, the Rules contain over thirty exceptions. The open-ended nature of the federal exceptions is epitomized by the "residual exception." Introduced by the Federal Rules, this (as noted above) innovative approach empowers federal trial judges to admit hearsay not specifically allowed by the established exceptions but having "equivalent circumstantial guarantees of trustworthiness." (94) Under Roberts', statements admitted under the residual exception meeting Wright's reliability standards would not violate the Confrontation Clause. But even setting aside the power of trial judges to craft an exception for the case being tried, the willingness of legislatures and some appellate courts to add hearsay exceptions on a categorical basis would eventually leave little of the Confrontation Clause. At some point, novel exceptions become firmly rooted exceptions. The threat to the values embraced by the Confrontation Clause is not limited to the Federal Rules. Most states have modeled their evidence codes on the Federal Rules. (95) And even states that have retained their own rules have codes with numerous hearsay exceptions. (96)

Crawford's principal contribution is its potential to halt the inevitable erosion of confrontation rights inherent in the Roberts-Wright line of cases. In addition, when testimonial statements are offered against the accused, Crawford eliminates the uncertainties about whether a particular exception is "firmly rooted" and, if not, about whether the Wright reliability standards have been met. But Crawford too has its costs. Chief among them is uncertainty about the definition of "testimonial statements."

A. Definitional Uncertainties

In Crawford, the Court emphasized that the ultimate goal of the Confrontation Clause is to ensure the reliability of evidence through a procedural rather than a substantive guarantee. (97) That goal, however, cannot be the exclusive basis for a confrontation doctrine, since it would result in the exclusion of all hearsay offered against the accused unless the declarant was produced for cross-examination at the trial. The sole exception would be for the accused's own admissions, since the accused could hardly complain about an inability to cross-examine himself. The Court, of course, would never accept such a construction of the Clause. But limiting the scope of the Clause to the kinds of testimonial statements that the Court believes troubled the Framers does not always provide a ready answer to the question of when the accused is entitled to cross-examine the hearsay declarant. As the Court concedes, Crawford might overrule White. The officer interrogating the victim could be viewed as the modern equivalent of a magistrate gathering evidence with an eye to its possible use at the trial. But the Court's refusal to overrule White expressly indicates that the Court might have some reservations about the reach of Crawford even when the statement offered by the prosecution was elicited by an officer conducting a criminal interrogation.

A more difficult definitional problem is posed by the doctor's and nurse's testimony in White. Under the Illinois hearsay exception, they were allowed to relate the victim's statements identifying the accused as her assailant. Were they acting as modern day magistrates gathering evidence ex parte or were they attempting to treat the child? If the answer depends on their motivation, then determining whether a confrontation violation occurred will in some instances require a consideration of the evidence adduced in a particular case rather than on the categorical approach suggested by the Court.

Focusing on the motivation of the hearsay declarant, as opposed to the motivation of the witness who heard the hearsay, presents additional problems. Presumably, the prosecution is offering the hearsay declaration in the first place because of the unavailability of the hearsay declarant as a witness. Consequently, the declarant would be unavailable for an examination of the reasons that motivated her to provide the incriminating statement. The need to avoid subjective considerations invites the application of an objective standard. But even such a standard would not solve the problem in cases such as White. No judge could determine whether a four-year-old girl either knew or should have known that her statement to the officer might be used as evidence against her assailant. (98)

Significantly, the Court left open the question of whether some dying declarations should be excluded if they qualify as testimonial statements. (99) Dying declarations were among the first hearsay declarations the Court allowed to be used against the accused over a confrontation objection. (100) The justification comes directly from the law of evidence and not from any nuanced confrontation analysis. Without the exception, prosecutors might lose the best, and perhaps only, evidence linking the defendant with the homicide. Additionally, the evidence is deemed so reliable as to justify dispensing with cross-examination if one indulges the belief that no one in our society would dare meet his or her Maker with a lie on the lips. (101) But if under Crawford the admissibility of the declaration now turns on whether the declarant's intentions were to leave a statement for use at trial, judges will be forced to make this determination without recourse to the witnesses who can best provide an account of the motives that moved them to identify their killers. (102) Refraining from passing on the admissibility of dying declarations until the lower courts and parties have considered the question may make for sound constitutional adjudication. But it leaves prosecutors and defense lawyers, as well as the judges who preside over homicide trials, in a state of uncertainty that hardly promotes the sound administration of the criminal law.

B. The Unavailability Requirement

Crawford's unavailability requirement is also a cause for concern. The Court stresses that "the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination." (103) In Barber v. Page, (104) the Court held that compliance with the unavailability requirements of the forum's evidence rules would not necessarily satisfy the concerns of the Confrontation Clause. The Sixth Amendment, the Court reasoned, required the prosecution to demonstrate a good faith (though unsuccessful) effort to produce the hearsay declarant. (105) That is sound policy. Hearsay should not be admitted against the accused in the absence of a special need. But Crawford is silent on this point, stating only that all the Clause requires is "unavailability and a prior opportunity for cross-examination." (106) It may be that the Court had no need to reconsider Barber. Because it was Crawford's assertion of the marital privilege that prevented his wife from testifying, there was nothing the prosecution could have done to induce the wife to testify. (107)

Crawford is likewise silent on whether the prosecution should lose the right to offer testimonial statements when the hearsay declarant's unavailability is due to the prosecution's negligence. Motes v. United States holds that over a confrontation objection the prosecution may not offer hearsay against the accused in these circumstances. (108) In Crawford, the Court reaffirmed its earlier holding that a defendant forfeits his right to complain about a confrontation violation when he brings about the declarant's unavailability through wrongdoing. (109) A criminal defendant should not profit from his own misconduct. (110) Presumably, the same equitable concerns should preclude the use of hearsay against the defendant when the prosecution is at fault in bringing about the declarant's unavailability.

C. The Adequacy of the Opportunity to Cross-Examine the Declarant

Under Crawford, the opportunity for the accused to cross-examine the declarant is pertinent in two circumstances. First, if the declarant appears at the trial and is subject to cross-examination about his testimonial statement, the Confrontation Clause is satisfied. (111) Second, if the declarant is not produced for cross-examination by the accused, no confrontation violation will result from the introduction of the declarant's testimonial statement if the accused had an opportunity to cross-examine the declarant about the statement prior to the trial. (112) Left undefined by the Court is the adequacy of the opportunity that must be accorded the accused to cross-examine the declarant prior to the trial or at the trial.

Questions about the adequacy of the opportunity to cross-examine the declarant at a prior hearing are less likely to arise in California and those jurisdictions that have modeled their rules on the Federal Rules of Evidence. Under the California Evidence Code and the Federal Rules, testimony given by the declarant at an earlier hearing will not qualify under the hearsay exception for former testimony unless the accused at the earlier hearing had an opportunity on cross-examination to develop the declarant's testimony with a motive and interest similar to the ones the accused has at the trial. (113) In some jurisdictions, however, the limited nature of preliminary hearings in criminal cases all but guarantees that testimony given by prosecution witnesses will not satisfy Crawford's cross-examination requirement. In Colorado, for example, the magistrate presiding over the preliminary hearing may hold the defendant to answer on the charges filed if the prosecution makes out a prima facie case. (114) Since a magistrate may not weigh the credibility of the witnesses unless their testimony is incredible as a matter of law, the magistrate may prevent the defendant from cross-examining the witnesses called by the state. (115) Moreover, even if the defendant is given an opportunity to cross-examine the prosecution witnesses, the defendant might forego that chance since the witness's answers will not affect the outcome of the hearing except in the rarest of circumstances. (116) Suppose, however, that a defendant declines the opportunity to cross-examine a key prosecution witness. May the defendant object to the introduction of the witness's testimony at the trial on Crawford grounds? Because the question was not before the Court, it is unclear whether confrontation requires merely an opportunity to cross-examine the declarant fully or actual cross-examination. (117)

Of equal importance is the question whether defendants can object to the introduction of testimonial statements on the ground that they cannot cross-examine the declarant fully at the trial. In Crawford, the Court held that "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.... The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." (118) If at the trial the declarant claims no recollection of the statement, may the prosecution still offer it under Crawford? The issue has already arisen in California. Citing the U.S. Supreme Court's opinions in Green (119) and United States v. Owens, (120) the California Court of Appeal in People v. Warner held that no confrontation violation occurs where the declarant's statement is received under these circumstances. (121) As noted above, in Green the Court approved the use, over a confrontation claim, of the preliminary hearing testimony of a prosecution witness who claimed at the trial not to remember who had supplied him with marijuana. (122) At the preliminary hearing, the witness had identified the accused as his supplier. Green, however, was a stronger case than Warner for rejecting a confrontation violation. True, in both cases had the witness identified the accused at the trial, then the most the defense could have achieved on cross-examination was to get the witness to admit precisely what the witness actually told the prosecutor at the trial--in Green that he could no longer identify his supplier and in Warner that she could no longer identify her attacker. (123) But unlike Warner, where the victim made her extrajudicial statement in the accused's absence, in Green the accused had been accorded the additional opportunity at the preliminary hearing to cross-examine the witness about the statements identifying him as the supplier.

In this regard, Warner is closer to Owens. (124) In Owens, the victim of an assault was unable to identify his attacker at the trial as a result of the injuries he suffered in the assault. The prosecution was allowed to offer a statement that the victim had made to a law enforcement officer identifying the accused as his attacker. Unlike Green, Owens had not been given an opportunity to cross-examine the victim at the time the victim made his extrajudicial statement to the law enforcement officer. Nonetheless, the Court rejected Owens's confrontation claim. Owens, like Green, had been given an opportunity at the trial to cross-examine his accuser under oath before the jurors about his recollection of the attack. (125) If Owens is still good law after Crawford, then a declarant's failure to recall his extrajudicial statements would appear to be immaterial in determining whether the declarant is nonetheless present at the trial to "defend or explain" his extrajudicial statements.

A different problem is posed when the trial judge imposes unusually restrictive limitations on the scope of cross-examination. In United States v. Wilmore, (126) the government called a witness to testify that the defendant had a gun. The witness, however, surprised the government by testifying that she did not see the defendant with a gun. (127) The government then impeached the witness with her grand jury testimony, in which she had said the defendant had a gun. Under the Federal Rules of Evidence, her grand jury testimony was admitted both to impeach her and as proof that the defendant had a gun (128) (indeed, it constituted the only evidence offered at the trial that the defendant had a gun (129)). The defendant, however, was precluded from cross-examining the witness about her grand jury testimony by the judge, who instructed the defense not to ask any question to which the witness was likely to assert the Fifth Amendment. (130) As a result, the defendant was unable to inquire whether the witness had lied to the grand jurors (since on advice of counsel she would have asserted the Fifth Amendment). The Ninth Circuit held that the judge's order violated the defendant's Sixth Amendment right to cross-examine the declarant about the testimonial statement received in evidence. (131) Suppose, however, that the trial judge had not limited the defendant's cross-examination and the witness had asserted the Fifth Amendment each time she was asked about her grand jury testimony. Would that circumstance have deprived the accused of the type of cross-examination contemplated by Crawford? The question was not presented in Crawford because the out-of-court declarant did not appear at the trial. (132)

V. NONTESTIMONIAL STATEMENTS AND CONFRONTATION

A. Business Records

According to the Court, "[t]he unpardonable vice of the Roberts test ... is not its unpredictability, but its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude." (133) As examples, the Court cites accomplice confessions implicating the accused, plea allocutions disclosing the existence of conspiracies, and grand jury testimony. (134) But Crawford's definition of "testimonial statements" may suffer from the same vice. Because testimonial statements under Crawford do not include statements in business records, (135) whether an accused's confrontation rights are violated might depend on the prosecutor's choice of hearsay exceptions.

Whether hearsay is admissible against the accused under Crawford depends initially on the forum's rules of evidence. In California, for example, a prosecutor may choose among the hearsay exceptions in offering a police report. (136) Just because the report may have been prepared by a public employee does not mean that the prosecution must offer the report as an official record. Indeed, the classic case imposing the business duty rule on the admissibility of business records involved a police report. (137) In California, the business duty rule often results in the exclusion of police reports. While the officer taking the report may have a duty to record the statements of witnesses, witnesses do not as a rule have a duty to report their observations. (138) But one seeking admission of the record can bypass the business duty rule by demonstrating that the witness's statement falls within a hearsay exception, such as the one for excited utterances. (139) Surely, a prosecutor should not be allowed to circumvent Crawford by offering a witness's statement taken during a police interrogation as part of a report that qualifies as a business record. The witness's statement was taken as part of a criminal investigation with litigation in mind. But Crawford's exclusion of business records from the definition of testimonial statements leaves some doubt about the matter.

Depending on how they were prepared, records of judgments of conviction can be offered in California as official or business records. (140) The hearsay implications are not great when such records are offered only to prove the fact of conviction. But when the records are offered to prove the misconduct underlying the conviction, the hearsay rule is seriously implicated because multiple layers of hearsay are involved. In California, for example, a criminal judgment is rendered when the sentencing judge orally pronounces the sentence. (141) That pronouncement is based on a finding of guilt: a guilty verdict or a guilty plea. When the judgment is offered as evidence that the convict engaged in the misconduct giving rise to the conviction, in the case of findings of guilt or guilty verdicts the judgment is being offered as proof of the minimum evidence (including the testimony of witnesses) the prosecution had to offer to make out a prima facie case. (142)

A provision of the California Evidence Code has recently been interpreted to allow the use of judgments of conviction to prove the misconduct underlying the conviction if they otherwise qualify as official records. (143) Since official records can also qualify as business records, Crawford's language exempting business records from the definition of testimonial statements can be problematic. For example, a prosecutor charging the accused with possessing stolen property might want to prove the stolen nature of the property through conviction records indicating that the persons who transferred the property to the accused were convicted of having stolen the property. But unless the accused was somehow a party to that prosecution, he would not have had an opportunity to cross-examine the witnesses called by the prosecution to prove that the defendants prosecuted in that case had stolen the property. Over one hundred years ago, the Court held that the use of conviction records to prove the stolen nature of such property violates the accused's confrontation rights. (144) Presumably, Crawford would bar the use of such records as "testimonial statements" even if under the forum's rules they can be offered as business records.

Prosecutors often have to use forensic experts to prove an element of the offense charged. In a prosecution for possessing a controlled substance, for example, the prosecutor must establish that the substance removed from the defendant's possession proved to be the proscribed substance. No confrontation violation occurs when the prosecutor calls the chemist to the stand. But where the expert is unavailable to testify, may the prosecutor, over a confrontation objection, offer the expert's report? The issue arose but was not decided on confrontation grounds in the Second Circuit's decision in United States v. Oates. (145) Instead, the court held that the report was inadmissible under the exception in the Federal Rules of Evidence for official records. (146)

Of particular interest, the court held that the prosecution could not circumvent the limitation of the federal exception for official records by offering the chemist's report as a business record. (147) In the court's view, extensive amendments by Congress to the exception for official records evidenced Congress's concern with preventing the trial of criminal defendants by police report. Though not holding that the use of the chemist's report would have violated the accused's right of confrontation, (148) the court refused to permit the government to circumvent the balance struck by Congress in the federal exception by allowing the government to resort to other hearsay exceptions. (149) Not all circuits, however, agree with this construction of the federal exception for official records. The Eighth Circuit, for example, allows prosecutors to resort to other exceptions. (150)

Cross-examining an opposing expert is crucial to the defense. Only with the expert on the stand can the defense probe whether the expert is qualified to give the opinions desired by the prosecution and whether the expert followed appropriate protocols, applied valid principles, and ignored inappropriate matter in reaching his or her conclusion. (151) Having the expert on the stand also allows the defense to inquire about the expert's biases. Although bias and interest can be established through other witnesses, much of what a cross-examiner might achieve by questioning an expert could be lost if the prosecution is permitted to offer the expert's findings as a business record.

Despite the Court's exemption of business records from the definition of testimonial statements, the requirements of Crawford should nonetheless apply to the findings of chemists and other forensic experts associated or allied with the prosecution. The purpose of their reports is to assist the prosecution in assessing whether charges should be filed and in preparing and presenting the case for trial. Thus, even if offered as business records, forensic experts' findings should nonetheless qualify as testimonial statements.

B. Coconspirators' Declarations

In contrast, Crawford might place other hearsay evidence that could be equally devastating to the accused beyond the reach of the Confrontation Clause. In addition to business records, the Court singled out coconspirators' declarations as an example of statements that are not testimonial. (152) Declarations by coconspirators made in furtherance of the conspiracy are admissible against the conspirator on trial on the theory that coconspirators impliedly authorize each other to make statements and take other steps that promote the criminal agreement. (153) The hearsay exception does not require the prosecution to establish the declarant's unavailability to testify as a witness. (154) Consequently, the prosecution may offer a coconspirator's declaration through any witness who has firsthand knowledge of what the coconspirator said. When that occurs, the defense is denied the opportunity to cross-examine the declarant even if the declaration constitutes key evidence implicating the accused in the offense charged. In Inadi, the accused maintained that at the very least the Confrontation Clause required the prosecution to produce the declarant for cross-examination or demonstrate the declarant's unavailability as a witness. (155) The Court rejected this claim, holding that coconspirators' declarations made while the conspiracy is in progress are sufficiently reliable to justify dispensing with cross-examining the declarant. (156)

That kind of analysis is unnecessary under Crawford if the hearsay offered against the accused qualifies as a testimonial statement. Presumably, the Court exempted coconspirators' declarations from the definition of testimonial statements because the state is not involved in generating the declarations and the declarants do not anticipate their use at a trial involving their coconspirators. (157) That answer, however, is hardly responsive to the concerns of the defense lawyer confronting the prosecution witness who testifies on direct examination that a confederate of the defendant approached him and asked whether he could borrow the witness's car because the confederate and the accused needed the car to rob the local bank. If given a choice, the witness the defense would cross-examine is not the reporting witness but the hearsay declarant. The declarant, not the reporting witness, is the source of the damaging evidence.

One aspect of coconspirators' declarations underscores their dangerousness to the accused. In jurisdictions such as California, the foundational facts justifying the exception have to be proved by the prosecution only by a sufficiency standard. (158) A California judge must let the jurors hear the declaration if the judge concludes that reasonable jurors could find the foundational facts if the prosecution's evidence were believed. (159) Ordinarily, California requires the proponent to persuade the judge by a preponderance of the evidence of the existence of the foundational facts that justify a hearsay exception. (160) An exception is made in the case of coconspirators' declarations because coconspirators are presumed to authorize each other to make statements in furtherance of the conspiracy, and under the California Evidence Code the question of authority raises only a sufficiency issue. (161)

Although the question of authority is also a sufficiency issue under the Federal Rules, (162) the Rules, as construed by the U.S. Supreme Court, require the judge to find the foundational facts for coconspirators' declarations by a preponderance of the evidence. (163) That added protection, however, is undercut by the federal approach of allowing the judge to consider the hearsay declaration itself as proof of the foundational facts. (164) Although the declaration alone cannot suffice as proof of the foundational facts, (165) allowing the judge to consider the declaration in making the admissibility ruling obviously eases the prosecution's burden in placing the declaration before the jurors.

From an outcome perspective, it is unclear whether Crawford disadvantages defendants who oppose coconspirators' declarations. In Crawford, the Court declined to rule on whether nontestimonial hearsay offered against the accused is subject to confrontation scrutiny. If the Court restricts confrontation claims to testimonial statements, the admissibility of coconspirators' declarations will depend on the forum's rules of evidence. If the Court chooses to apply Roberts to these statements, then they will remain admissible. The question whether hearsay falls within a firmly rooted exception is a federal one, (166) and in the case of coconspirators' declarations, the Court has answered that question against the accused. (167)

The Court, of course, is free to devise a new confrontation test to determine the admissibility of nontestimonial statements. Whether it will do so may depend on whether the Court concludes that the Framers would have been troubled by the admission of untested coconspirators' declarations. The impetus for adopting the hearsay rule can be traced in large measure to Sir Walter Raleigh's conviction of treason. (168) Much of the evidence offered against Raleigh consisted of statements made by Lord Cobham to his interrogators after the alleged conspiracy between Cobham and Raleigh had ended. The statements thus had the quality of testimonial statements condemned by Crawford. But what if the bulk of the evidence against Raleigh had consisted instead of statements made by Cobham to others during the course of the conspiracy? Since Cobham was not produced at the trial despite Raleigh's insistent demands, the question is whether the Framers would have considered such statements, but not the statements to Cobham's interrogators, to be beyond the reach of the Confrontation Clause. Would the Framers, at the very least, have contemplated their use only if the prosecution first established the declarant's unavailability?

C. Declarations Against Interest

Essentially the same point can be made about declarations against interest. The only declarations that appear to count as testimonial statements are those made as confessions in the course of police or other official interrogations. (169) Those made to others do not seem to count. From a defense perspective, however, either type of declaration can be equally devastating. As Greenberger emphasizes, while declarations made in official coercive settings may be the most suspect, any declaration that shifts blame for the offense raises questions about the declaration's reliability. (170) Yet, if the declaration is made in the course of a police interrogation, it may not be used under Crawford unless the declarant testifies at the trial or, if the declarant is unavailable, the prosecution demonstrates that the accused had a prior opportunity to cross-examine the declarant about the declaration offered at the trial. But if made to a private individual, then until the Court speaks again it will remain unclear whether the declaration can be offered over a confrontation objection.

The hearsay exception for declarations against penal interest is a relatively recent addition to the rules of evidence. (171) It did not exist at the time the Bill of Rights was adopted. Crawford does not say whether the declarant's motivation should be taken into account in determining whether a hearsay declaration counts as a testimonial statement. (172) If the declarant's motivation is a pertinent consideration, then it is difficult to see why declarations made in the course of official interrogations, but not declarations made in private settings, should count as testimonial statements. Both are equally damaging to the accused, and both raise questions about the declarant's veracity. So it seems odd that the accused's right to cross-examine his hearsay accuser might depend on the fortuity of whether the declaration meets Crawford's definition of a testimonial statement. In both cases the state is attempting to use the "testimony" of a "witness" who cannot be cross-examined to condemn the accused. In both instances, it is the narrative quality of the declaration that the state seeks to place before the jury. If as a categorical matter declarations against penal interest made in private settings do not qualify as testimonial statements, then it seems that the Court should devise some test to determine their admissibility over a confrontation objection. Roberts is unavailable because of Lilly's finding that the exception for declarations against penal interest does not qualify as a firmly rooted exception. (173) But even if this aspect of Lilly is overruled, Roberts would not provide an effective screen once the Court declares such declarations to be within a firmly rooted exception. The Court, moreover, is unlikely to adopt Lilly's framework for determining whether the prosecution has demonstrated the declarations' reliability. The Court in Crawford describes this framework as "unpredictable," (174) "manipulable," (175) and incapable of producing consistent results, (176) and condemns it for allowing "a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability." (177)

Given the Court's harsh assessment of Lilly's framework and Roberts's ineffectiveness as a screen, it is hard to imagine how the Court might regulate declarations against interest that do not qualify as testimonial statements. Leaving them for regulation under the forum's evidence rules would not even ensure a judicial determination of their reliability in forums where the declarations are otherwise admissible. Unless legislatures or courts are willing to impose the limitations found in the Federal Rules of Evidence and the California Evidence Code, the rules will allow prosecutors to offer these declarations without subjecting the declarant to cross-examination.

VI. EMERGING HEARSAY EXCEPTIONS: STATEMENTS BY CRIME VICTIMS

Declarations by crime victims require special attention because of special dangers they present to the accused. Often these declarations contain references to past misdeeds by the accused. In a kidnapping case, for example, a declarant may describe not merely a mental state ("I am afraid of the accused") but also the reasons for that state of mind ("I am afraid of the accused because he has threatened to kill me"). Under conventional hearsay analysis, that portion of the victim's statement describing her fear can be offered under the exception for statements describing a then-existing state of mind, but not the portion relating the reason for her fear. (178) Statements of remembered facts may not be offered to prove the fact remembered. (179) Accordingly, receiving a redacted form of the victim's declaration or the entire declaration with the appropriate limiting instruction would not implicate the Confrontation Clause.

When the victim's state of mind is not a material issue under the law defining the offense, courts should exclude the evidence unless it is probative of some other proposition that is properly provable in the action. Rufo v. Simpson (180) illustrates this point. It was a survival action brought by the personal representative of Nicole Simpson against her former husband, O.J. Simpson. The plaintiff's theory was that Nicole's termination of her relationship with O.J. provoked him to kill her. To prove that Nicole's feelings toward O.J. prompted the breakup, the plaintiff was allowed to call the director of a battered women's shelter to testify that Nicole had told her that O.J. had been stalking her, had beaten her, and had threatened to kill her if he caught Nicole with another man. The reviewing court upheld the use of the evidence; it was received, not to prove as true the assertions about O.J.'s mistreatment of Nicole, but as circumstantial evidence of Nicole's negative feelings toward O.J. This evidence in turn helped explain why she terminated her relationship with O.J. five days before her murder. (181) In approving the use of the evidence, the reviewing court emphasized the care the trial judge took in ensuring that the jurors understood the limited purpose of the evidence. (182) Although one might question the ability of jurors to abide by the limiting instruction, the Confrontation Clause was not implicated because Nicole's statements were not received for the truth of the matters stated.

That state of affairs, however, has now changed. Following O.J.'s acquittal on charges of murdering Nicole and her companion, the California Legislature created a hearsay exception for some victim statements. (183) Section 1370 of the California Evidence Code provides that a victim's hearsay statement may be received for the truth if the following conditions are satisfied: (1) the victim is unavailable to testify; (2) the statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the victim; (184) (3) the statement was made at or near the time of the infliction or threat of physical injury; (4) the statement was made in writing, was electronically recorded, or was made to a law enforcement official, physician, nurse, or paramedic; (5) the statement was made under circumstances indicating its trustworthiness; and (6) the proponent makes known to the opposing party the intention to offer the statement and the particulars of the statement sufficiently in advance of proceedings so as to provide the opposing party with a fair opportunity to prepare to meet the statement. (185) In determining whether the statement was made under circumstances indicating trustworthiness, the trial judge may take into account the following factors, among others: (1) whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested; (2) whether the declarant had a bias or motive for fabricating the statement, and the extent of any bias or motive; and (3) whether the statement is corroborated by evidence other than the statements that are admissible under the new hearsay exception. (186)

Section 1370 raises interesting confrontation questions. One is whether statements by victims received under the new exception qualify as testimonial statements. If the statement was made to a law enforcement officer who was investigating a crime against the victim, then it would appear to qualify as a testimonial statement. (187) If so, then under Crawford the statement could not be offered for the truth unless the victim testified, or, if she was unavailable, the accused had been accorded an opportunity prior to the trial to cross-examine her about the statement offered at the trial. (188)

Whether statements made to physicians, nurses, and paramedics qualify as testimonial statements is problematic. Were they acting as modern equivalents of civil law magistrates or were they providing medical assistance? Statutes requiring medical personnel to report suspected instances of abuse complicate the matter. (189) Should trial judges attempt to resolve this question on a categorical or on a case-by-case basis? Crawford does not say. If on a case-by-case basis, then determining whether a statement qualifies as a testimonial statement will sometimes require an evidentiary hearing. (190)

If the victim's statement does not qualify as a testimonial statement, then it is unclear whether it can be excluded on confrontation grounds. Crawford reserved for another day whether nontestimonial statements would be subject to Sixth Amendment scrutiny. If the Court decides to test those statements under Roberts, then attention must be given to the provision conditioning admissibility on whether the statement is corroborated by evidence other than the statements that are admissible under the new hearsay exception. In Wright, (191) the Court held that determining whether use of a newly minted exception to the hearsay rule violates the accused's confrontation rights depends on whether the prosecution can demonstrate that the out-of-court statement meets particularized guarantees of trustworthiness. In making this showing, the prosecution can rely on circumstances "that surround the making of the statement and that render the declarant particularly worthy of belief." (192) But the prosecution may not rely on other evidence that corroborates the truth of the hearsay statement. (193) This mandate conflicts with section 1370. So if the Court retains the Roberts-Wright test to scrutinize nontestimonial statements, California prosecutors using section 1370 must take care to comply with Wright's mandate in addition to the requirements of the section. (194)

Section 1370 illustrates some of the dilemmas created by Crawford. It may prove impossible to determine on a categorical basis whether the hearsay offered against the accused qualifies as a testimonial statement. Depending on how the definition of a testimonial statement develops, a single statute like section 1370 may call for the exclusion of some hearsay that qualifies as a testimonial statement but the admission of other hearsay that does not. (195) Categorizing the hearsay by exceptions will not always resolve the definitional problem. A witness's statement elicited by police officers in the course of a criminal investigation should count as a testimonial statement even if offered under the business records exception. Moreover, determining whether the person taking the statement is today's equivalent of a civil law magistrate may require an evidentiary hearing to determine whether the doctor was treating the patient or gathering evidence ex parte from the victim.

Section 1370 is also illustrative of the dynamic aspects of evidence law. Legislatures sometimes respond to an increase in existing offenses by changing the rules of evidence. For example, in response to an increase in child abuse complaints, California added a new hearsay exception to the Evidence Code--section 1360--that applies to statements describing any act of child abuse or neglect made by a child victim under twelve and offered in a criminal prosecution while the child victim is still a minor. To be admissible under this provision, the court must find in a hearing conducted outside the presence of the jury that the time, content, and circumstances surrounding the statements provide sufficient indicia of reliability. (196) In addition, either the child must testify at the hearing or, if the child is unavailable, other evidence must corroborate the child's out-of-court statements. (197)

Section 1360 has been upheld against the claim that its use violates the accused's right to confront his accuser where the child victim does not testify. (198) But because section 1360 creates a new hearsay exception, California courts have applied Wright, holding that a confrontation violation will be found only where the prosecution fails to show that the circumstances surrounding the making of the hearsay statements render the declarant particularly worthy of belief. (199) For example, a California court has held that the fact that a child's statements were made in response to leading questions is a circumstance that can render the statements unworthy of belief. (200) Of course, no such analysis is required under Crawford if the child's statements qualify as testimonial statements. (201) But if they do not, it is unclear whether they would be subject to confrontation scrutiny, and, if so, what test the Court would employ.

At times the California Legislature has defined new crimes in conjunction with adding new hearsay exceptions. In response to rising complaints of abuse regarding elderly persons and dependent adults, California added a new hearsay exception that allows statements by the elderly and dependent adults to be offered in prosecutions for the new crime of elderly- or dependent-adult abuse. (202) The hearsay exception was drafted with Wright in mind. The party offering the statement must make a showing of the particularized guarantees of trustworthiness regarding the statement, that the statement was made under circumstances which indicate its trustworthiness, and that the statement was not the result of promise, inducement, threat, or coercion. In making its determination, the court may consider only the circumstances that surround the making of the statement and that render the declarant particularly worthy of belief. (203)

Compliance with these conditions will be irrelevant under Crawford if the statement offered by the prosecution qualifies as a testimonial statement. This is not out of the question. The statement is not admissible under the hearsay exception unless "[t]he entire statement has been memorialized in a videotape recording made by a law enforcement official, prior to the death or disabling of the declarant." (204) It is, of course, a good idea for the statement to be memorialized by a law enforcement officer, especially in videotape form. The recording will help eliminate controversies about what the declarant said. Yet, it is ironic that statutory language designed to exceed yesterday's confrontation standards might now result in the exclusion of the evidence under Crawford, (205) and, worse, that Crawford might induce legislatures to delete these safeguards and avoid them in enacting new hearsay exceptions.

VII. REGULATING NONTESTIMONIAL STATEMENTS--OPTIONS

Crawford offers two distinct advantages. It halts the eventual, almost total erosion of the right to confront witnesses by jettisoning the Roberts-Wright test when the prosecution offers testimonial statements against the accused. That puts some teeth in the Confrontation Clause. Crawford also abolishes the power of judges to substitute their reliability judgments for the accused's right to cross-examine the declarant under oath in the presence of the jury, where the prosecution offers testimonial statements. These are not trivial benefits.

On the other hand, the Court now faces difficult questions in defining fully the meaning of "testimonial statements." The Court will have to decide whether a person's mental state should be taken into account in determining whether that person was acting as a civil law magistrate in taking the statement offered. Exploring the mental states of police officers, district attorney investigators, FBI agents, and others typically associated with the prosecution may not be necessary: their function of identifying potential witnesses and taking their statements are jobs associated with magistrates. Although not as clear, 911 operators should also fall into this category. (206) But the same cannot be said as easily about doctors and other medical personnel, although statutes charging them to report criminal activity might help obviate the need to examine their mental states.

Similarly, the Court will have to decide whether the mental state of the person giving the statement should count in determining whether the declaration offered is a testimonial statement. If the declarant's mental state does count, examining the declarant may prove impossible in most circumstances since presumably the prosecution is offering the statement precisely because the declarant is unavailable. Applying an objective test will not always avoid the need to examine the declarant. A judge, for example, may find it difficult, if not impossible, to assess whether a child of tender years should have known that her statement identifying the accused as her assailant might someday be used by a prosecutor at a trial.

It seems also inevitable that the Court will have to revisit its unqualified statement that business records do not qualify as testimonial statements. A victim's statement implicating the accused in the crime charged should not be exempt from confrontation scrutiny just because it is offered as part of a police report qualifying as a business record. Neither should prosecutors be allowed to exempt forensic experts from cross-examination by offering their findings as business records. The Court will have to make clear that in determining whether a writing constitutes a testimonial statement, the label the forum attaches to the hearsay exception used will not be controlling.

Other issues awaiting a future decision by the Court include the meaning of the unavailability requirement. Crawford settles the issue that it is the prosecutor who must establish the declarant's unavailability to appear at the trial. But whether the standards of Barber or the forum's lower standards apply in assessing unavailability is left unanswered. Additionally, the Court will have to define the adequacy of the opportunity granted to the accused to cross-examine the hearsay declarant prior to or at the trial.

Of critical importance is the question whether the Confrontation Clause embraces nontestimonial statements. If the Court ultimately holds that it does not, then the door will be left open to convicting criminal defendants by the use of statements untested by cross-examination. That would shift the battle over the admissibility of nontestimonial declarations against interest and statements within other hearsay exceptions from the courts to the state legislatures and Congress. If the Court decides that the dangers of convicting defendants with these statements require confrontation scrutiny, the challenge will be to formulate a test that can withstand the criticisms the Court leveled at Roberts.

The Court would appear to have three options. One (and the easiest for trial judges to administer) is simply to require the prosecution to establish the declarant's unavailability by the kind of exacting standards the Court announced in Barber. Unless the prosecution makes reasonable, good faith efforts to secure the attendance of the hearsay declarant, the prosecution may not offer the statement at the trial, even if the unavailability of the witness has been established by the forum's rules. Another option would be to supplement this test by excluding the statement if the prosecution fails to take steps to preserve the witness's testimony under circumstances affording the accused an opportunity to cross-examine the declarant. The question for the trial judge would be whether the prosecution knew or should have known that the witness might become unavailable to testify by the time the declarant became unavailable. If the Court chooses this route, then jurisdictions would have to make sure that their criminal procedure rules allow for pretrial hearings or depositions for preserving the testimony of witnesses who are subject to cross-examination.

A third option would be for the Court to extend Crawford's ban on the use of testimonial statements to nontestimonial statements. The justification would be that the admission of, say, a declaration against penal interest implicating the accused should not depend on the fortuity of whether the declaration was made to or elicited by someone matching the role of a civil law magistrate as opposed to a private individual. In both cases, the accused has the same interest in exposing perceptual, memory, narrative, and veracity flaws that if brought before the attention of the jurors might cause them to reject the statement. It is unlikely that the Court will adopt this approach, however, given the Court's emphasis on the Framers' concern with statements gathered ex parte by civil law magistrates. Regardless of their damaging effect on the accused, confessions by accomplices to friends in bars or statements by coconspirators to further the object of their criminal agreement do not, without more, fit the model of the statements the Court said the Framers had in mind.

Any test requiring judges to determine the reliability of nontestimonial statements is not likely to be adopted by the Court. In the confrontation area, Crawford can be seen as paralleling the Court's response to the problem of coerced confessions. It is one matter to say that such confessions should be excluded because they are unreliable. It is quite another to formulate a test to determine whether they are coerced. For years the Court struggled with the challenge of providing police officers with practical guidelines for taking confessions free of coercive taint. The result ultimately was Miranda. (207) Although that opinion has spawned its own jurisprudence, most observers would agree that its guideline approach solved most problems associated with excluding coerced confessions.

Of course, providing police officers with workable rules is a different task from providing trial judges and lawyers with sensible rules for determining whether the use of nontestimonial statements offends the Confrontation Clause. Empowering trial judges to exclude these statements when they are unreliable is simply another way of telling defendants that they may not cross-examine an accuser when the judge finds the accuser reliable. Judges should not be entrusted with this kind of power unless we are confident that we can formulate rules that avoid the pitfalls singled out by the Court--unpredictability, manipulation, and inconsistent results. That may prove to be an impossible task.

(1.) MIGUEL A. MENDEZ, EVIDENCE: THE CALIFORNIA CODE AND THE FEDERAL RULES--A PROBLEM APPROACH [subsection] 1.01-1.02 (3d ed. 2004).

(2.) Id.

(3.) See, e.g., CAL. EVID. CODE [section] 711 (West 1995).

(4.) 380 U.S. 400, 403 (1965).

(5.) See infra text accompanying note 22.

(6.) 124 S. Ct. 1354 (2004).

(7.) See infra text accompanying notes 47-48 and 51-53.

(8.) See infra text accompanying notes 51-53.

(9.) See infra text accompanying notes 55-58.

(10.) See In re Winship, 397 U.S. 358, 364 (1970).

(11.) FED. R. EVID. 801(c).

(12.) One, of course, can acquire information through senses other than sight or hearing. One can also perceive by touching, smelling, and tasting. The California Evidence Code, for example, recognizes that all five senses are involved in the acquisition of knowledge. See, e.g., CAL. EVID. CODE [section] 170 (West 1995).

(13.) See FED. R. EVID. art. VIII advisory committee's note.

(14.) Id.

(15.) Id.

(16.) Id.

(17.) See id.

(18.) When a witness refuses to submit to cross-examination, the conventional remedy is for the trial judge to strike the testimony the witness gave on direct examination. Fost v. Marin County Superior Court, 95 Cal. Rptr. 2d 620, 627-28 (Ct. App. 2000).

(19.) 399 U.S. 149, 157 (1970). Consider also the following:
 [T]he Clause envisions "a personal examination and
 cross-examination of the witness, in which the accused has an
 opportunity, not only of testing the recollection and sifting the
 conscience of the witness but of compelling him to stand face to
 face with the jury, in order that they may look at him, and judge
 by his demeanor upon the stand and the manner in which he gives his
 testimony whether he is worthy of belief."


Ohio v. Roberts, 448 U.S. 56, 63-64 (1980) (quoting Mattox v. United States, 156 U.S. 237, 242-43 (1895)).

(20.) Green, 399 U.S. at 155-56.

(21.) Id. (footnotes omitted).

(22.) Roberts, 448 U.S. at 66.

(23.) Idaho v. Wright, 497 U.S. 805, 817 (1990).

(24.) Green, 399 U.S. at 164.

(25.) Id. at 165.

(26.) Roberts, 448 U.S. 56.

(27.) Id. at 65.

(28.) Id. at 66 (footnotes omitted).

(29.) Id. That was the case in Roberts', where the evidence fell within the former testimony exception to the hearsay rule.

(30.) 475 U.S. 387 (1986).

(31.) FED. R. EVID. 801(d)(2)(E).

(32.) Inadi, 475 U.S. at 394.

(33.) Id. at 395.

(34.) Id. at 396 (quoting Dutton v. Evans, 400 U.S. 74, 89 (1970)).

(35.) 502 U.S. 346, 354 (1992).

(36.) Id. at 356.

(37.) Id. at 355-56.

(38.) 497 U.S. 805 (1990).

(39.) Id. at 811-12.

(40.) Id. at 818.

(41.) Id. at 816.

(42.) Id. at 819.

(43.) Id. at 822.

(44.) 124 S. Ct. 1354 (2004).

(45.) Id. at 1358.

(46.) Id. Under the Washington rules of evidence, the wife could not testify without Crawford's consent. He refused to consent to her testifying. Id. at 1357.

(47.) Id. at 1369-72.

(48.) Indeed, to the Court it was immaterial that the Washington Supreme Court had found that the use of the wife's statement satisfied the Roberts and Wright tests for admitting hearsay against a defendant under a novel hearsay exception. Id. at 1373.

(49.) Id. at 1369-70.

(50.) Id. at 1374.

(51.) Id. at 1369 n.9.

(52.) Id.

(53.) Id. at 1374.

(54.) Id. at 1369 n.9.

(55.) Id. at 1363-64.

(56.) Id. at 1374.

(57.) Id. at 1367 n.7.

(58.) Id. at 1367.

(59.) White v. Illinois, 502 U.S. 346, 349-51 (1992).

(60.) Id. at 356 & n.8.

(61.) 124 S. Ct. 1354, 1368 n.8 (2004).

(62.) White, 502 U.S. at 349.

(63.) See Crawford, 124 S. Ct. at 1368 n.8.

(64.) FED. R. EVID. 803(3).

(65.) CAL. EVID. CODE [section] 1253 (West Supp. 2004).

(66.) See, e.g., Guam v. Ignacio, 10 F.3d 608, 612 (9th Cir. 1993) (upholding the use of a child's statement to a doctor identifying the child's assailant): People v. Brodit, 74 Cal. Rptr. 2d 154, 165 (Ct. App. 1998) (upholding the use of a child's statement to a nurse identifying the accused as the child's assailant).

(67.) 391 U.S. 123 (1968).

(68.) Id. at 126. No Bruton error is committed, however, where the confessing codefendant takes the stand and testifies favorably to the accused; in these circumstances, the use of the codefendant's confession does not deny the accused his confrontation rights. Nelson v. O'Neil, 402 U.S. 622, 629-30 (1971). In addition, no Bruton error is committed where the nontestifying codefendant's confession or admissions do not implicate the defendant in the offenses charged. People v. Olguin, 37 Cal. Rptr. 2d 596. 605 (Ct. App. 1994). But where Bruton error is committed, it is immaterial that the jury was instructed to consider the confession only against the confessing defendant. Jurors cannot be expected to abide by such an instruction. Bruton, 391 U.S. at 135-36.

(69.) Richardson v. Marsh, 481 U.S. 200, 211 (1987). But "[r]edactions that simply replace a name with an obvious blank space or a word such as 'deleted' or a symbol or other similarly obvious indications of alteration ... leave statements that, considered as a class, so closely resemble Bruton's unredacted statements that, in our view, the law must require the same result." Gray v. Maryland, 523 U.S. 185, 192 (1998).

(70.) Lee v. Illinois, 476 U.S. 530, 547 (1986) (holding that Bruton error was committed when a trial judge relied on a nontestifying codefendant's confession in finding another codefendant guilty).

(71.) See, e.g., Rogers v. McMackin, 884 F.2d 252, 256-57 (6th Cir. 1989), cert. denied, 493 U.S. 1061 (1990); Cockrell v. Oberhauser, 413 F.2d 256, 258 (9th Cir. 1969).

(72.) People v. Walkkein, 18 Cal. Rptr. 2d 383, 387 (Ct. App. 1993).

(73.) Id.

(74.) People v. Harris, 767 P.2d 619, 632-37 (Cal. 1989).

(75.) Crawford v. Washington, 124 S. Ct. 1354, 1374 (2004).

(76.) See, e.g., FED. R. EVID. 804(a)(1); CAL. EVID. CODE [sections] 240(a)(1) (West 1995).

(77.) 391 U.S. 123, 135-36 (1968).

(78.) 527 U.S. 116 (1999). In Lee v. Illinois, 476 U.S. 530 (1986), the Court declined to consider whether Bruton error could be obviated if the nontestifying codefendant's confession were received, not as an admission, but as a reliable declaration against interest. Id. at 544 n.5.

(79.) Lilly, 527 U.S. at 134.

(80.) Id. at 136.

(81.) 68 Cal. Rptr. 2d 61 (Ct. App. 1997).

(82.) Id. at 77.

(83.) Id. at 81.

(84.) Crawford v. Washington, 124 S. Ct. 1354, 1371 (2004).

(85.) Id.

(86.) 512 U.S. 594, 599 (1994).

(87.) Id.

(88.) 541 P.2d 296, 310 (Cal. 1975), cert. denied, 414 U.S. 926 (1976).

(89.) See, e.g., People v. Cervantes, 12 Cal. Rptr. 3d 774, 783 (Ct. App. 2004), where the court approved the use against two defendants of a declaration against interest which the court held did not qualify as a testimonial statement. In finding that the declaration was reliable under the Greenberger standards, the appellate court failed to consider whether the declaration was inadmissible as a statutory matter under Leach even though the defendants raised that ground. Id. at 781.

(90.) See, e.g., People v. Wilson, 21 Cal. Rptr. 2d 420, 434 (Ct. App. 1993). In Wilson, the accused was prosecuted, among other crimes, for using a gun in an assault. Two detectives testified that the accused's wife told them that the accused had asked her to conceal the gun he used in the assault. The wile was unavailable to testify. Because her statements to the detectives exposed her to the risk of prosecution as an accessory after the fact, her statements were admitted under California's hearsay exception for declarations against penal interest. The portion in which she related her husband's admission that he had used the gun in the assault was admitted under the hearsay exception for party admissions. Under the California Evidence Code, hearsay within hearsay may be admitted if each hearsay declaration meets the requirements of a hearsay exception. See CAL. EVID. CODE [section] 1201 (West 1995).

(91.) Crawford v. Washington, 124 S. Ct. 1354, 1374 (2004).

(92.) Id.

(93.) See FED. R. EVID. 801, 803-04. In counting the exceptions, I am ignoring the Rules' distinction between exceptions and exemptions.

(94.) FED. R. EVID. 807.

(95.) See JACK B. WEINSTEIN ET AL., EVIDENCE: RULES, STATUTE AND CASE SUPPLEMENT iii (2002).

(96.) See, e.g., CAL. EVID. CODE [subsection] 1200-1380 (West 1995).

(97.) 124 S. Ct. at 1370.

(98.) Professor Richard Friedman, who was cited favorably by the Court in Crawford, concedes this difficulty but nonetheless believes that the declarant's motivation should count in determining whether a statement is testimonial and urges the application of an objective test. See Richard D. Friedman, 'Face to Face': Rediscovering the Right to Confront Prosecution Witnesses, 8 INT'L J. EVIDENCE 1, 21 (2004). He also offers rules of thumb. "A statement made knowingly to the authorities that describes criminal activity is almost always testimonial. A statement made by a person claiming to be the victim of a crime and describing the crime is usually testimonial, whether made directly to the authorities or not." Id.

The Second District of the California Court of Appeal agrees with Friedman. A statement qualifies as testimonial if the judge determines that the declarant knew or should have known that the statement would be used at a trial. People v. Cervantes, 12 Cal. Rptr. 3d 774, 782-83 (Ct. App. 2004). Cerrantes upheld the use of a declaration against interest implicating the declarant as well as the defendants on trial. Because the declarant made the statement to a medical assistant and not an investigating police officer, the court found it necessary to take the declarant's motivation into account in determining whether the declaration qualified as a testimonial statement. Id. In support of the use of the objective test, the court cited that portion of Crawford in which the U.S. Supreme Court quoted from an amicus brief in giving examples of "[v]arious formulations" of testimonial statements. Id. The quote, taken from the brief filed by the National Association of Criminal Defense Lawyers, would count as testimonial "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." Crawford, 124 S. Ct. at 1364.

(99.) Crawford, 124 S. Ct. at 1368 n.6.

(100.) Mattox v. United States, 146 U.S. 140, 151 (1892).

(101.) Regina v. Osman, 15 Cox's Crim. L. Cas. 1, 3 (Chester Assizes 1881).

(102.) Under the Federal Rules, the declaration can be offered only in homicide prosecutions. FED. R. EWD. 804(b)(2). Under the California Evidence Code, the declaration is admissible also in wrongful death cases. CAL. EVID. CODE [section] 1242 law revision commission comment (West 1995).

In People v. Jiles, 18 Cal. Rptr. 3d 790 (Ct. App. 2004), the court held that even if a dying declaration is testimonial a question the court declined to answer--its use against the accused does not offend the Sixth Amendment because, as the U.S. Supreme Court noted in Crawford by killing the declarant the accused forfeits on equitable grounds any confrontation claims. Id. at 795. For a discussion of the Supreme Court's forfeiture analysis, see infra text accompanying note 109.

(103.) Crawford, 124 S. Ct. at 1355.

(104.) 390 U.S. 719 (1968).

(105.) Id. at 724-25.

(106.) 124 S. Ct. at 1374.

(107.) The Court expressed "no opinion" on whether the Washington Supreme Court correctly rejected the state's argument that Crawford waived his confrontation rights by invoking the marital privilege. Id. at 1359 n. 1.

(108.) 178 U.S. 458,474 (1900).

(109.) 124 S. Ct. at 1370.

(110.) Reynolds v. United States, 98 U.S. 145, 158-59 (1879).

(111.) Crawford, 124 S. Ct. at 1369 n.9.

(112.) Id. at 1374.

(113.) FED. R. EVID. 801(d)(1); CAL. EVID. CODE [section] 1291(a)(2) (West 1995).

(114.) See People v. Fry, 92 P.3d 970, 977 (Colo. 2004).

(115.) Id.

(116.) Id.

(117.) In Pointer v. Texas, 380 U.S. 400 (1965), the Court held that only an opportunity to cross-examine at the prior hearing is required where the defendant is represented by counsel at a full-fledged preliminary hearing. Id. at 407.

(118.) Crawford, 124 S. Ct. at 1369 n.9.

(119.) 399 U.S. 149 (1970).

(120.) 484 U.S. 554 (1988).

(121.) 14 Cal. Rptr. 3d 419, 431 (Ct. App. 2004), review granted and opinion superseded by People v. Warner, 97 P.3d 811 (Cal. 2004). Under Rule 977 of the California Rules of Court, an opinion that has been superseded may not be cited as precedent. Warner is cited in this Essay only to illustrate the difficulties that can be encountered in defining the adequacy of cross-examination.

(122.) Green, 399 U.S. at 164.

(123.) Getting witnesses to concede that they concocted the entire episode is a highly improbable goal.

(124.) 484 U.S. 554 (1988).

(125.) Id. at 559.

(126.) 381 F.3d 869 (9th Cir. 2004).

(127.) Id. at 870.

(128.) See FED. R. EVID. 801(d)(1)(A).

(129.) Wilmore, 381 F.3d at 873.

(130.) Id. at 871.

(131.) Id. at 873.

(132.) In the Ninth Circuit, the issue would not have arisen because the remedy for a witness's assertion of the Fifth Amendment on cross-examination as to material matters is striking the witness's direct testimony. Id. Presumably, the motion to strike would also include extrajudicial statements by the witness offered by the prosecution for the truth of the matter asserted.

(133.) Crawford v. Washington, 124 S. Ct. 1354, 1371 (2004).

(134.) Id. at 1372.

(135.) Id. at 1367.

(136.) MENDEZ, supra note 1, [section] 10.07.

(137.) Johnson v. Lutz, 170 N.E. 517 (N.Y. 1930).

(138.) MENDEZ, supra note 1, [section] 10.07.

(139.) Id.

(140.) Id. [section] 12.03.

(141.) CAL. PENAL CODE [subsection] 1191, 1200 (West 2004): see also People v. Ibanez, 90 Cal. Rptr. 2d 536, 540 (Ct. App. 1999) ("In a criminal case, judgment is rendered when the trial court orally pronounces sentence.").

(142.) MENDEZ, supra note 1, [section] 12.03.

(143.) CAL. EVID. CODE [section] 452.5 (West Supp. 2004); People v. Duran, 119 Cal. Rptr. 2d 272, 282 (Ct. App. 2002). Duran's construction of section 452.5 is inconsistent with a longer-established provision of the Evidence Code exempting from the hearsay rule only those judgments of convictions of felony-grade crimes that are offered in a civil case. See CAL. EVID. CODE [section] 1300 (West 1995).

(144.) Kirby v. United States, 174 U.S. 47, 61 (1899).

(145.) 560 F.2d 45 (2d Cir. 1977).

(146.) Id. at 67-68. Under Rule 803(8) of the Federal Rules of Evidence, observations by police officers and other law enforcement personnel may not be offered in records qualifying as official records.

(147.) Id. at 78.

(148.) Id. at 80.

(149.) Id. at 84. The Second Circuit has since retreated somewhat from this position, in United States v. Yakobov, 712 F.2d 20 (2d Cir. 1983), it held that Oates did not preclude the government from offering a record to prove the absence of an entry under Rule 803(10) of the Federal Rules of Evidence, even though the record would be inadmissible as an official record. Id. at 25-27.

(150.) United States v. Baker, 855 F.2d 1353 (8th Cir. 1988), cert. denied, 490 U.S. 1069 (1989). The U.S. District Court for the Central District of California has approved the admission of a chemist's report against the accused on the ground that the California hearsay exception for official records is a firmly rooted exception. Lacy v. Lewis, 123 F. Supp. 2d 533, 553 (C.D. Cal. 2000).

(151.) MENDEZ, supra note 1, [section] 16.06.

(152.) Crawford v. Washington, 124 S. Ct. 1354, 1367 (2004).

(153.) MENDEZ, supra note 1, [section] 7.04.

(154.) See, e.g., FED. R. EVID. 801(d)(2)(D); CAL. EVID. CODE [section] 1223 (West 1995).

(155.) United States v. Inadi, 475 U.S. 387, 394 (1986).

(156.) Id. at 395-96.

(157.) Professor Richard Friedman, who stresses the state of mind of the declarant in defining whether a statement is testimonial, would exempt coconspirators' declarations from the definition because they are intended by the declarant to further the criminal enterprise. See Friedman, supra note 98, at 26. Admittedly, coconspirators are unlikely to make the statements with criminal litigation in mind. In Crawford, however, the Court seems more interested in whether the person taking the statement is the functional equivalent of a civil law magistrate. To the extent that mental states are relevant in defining testimonial statements, it puts a premium on that person's state of mind.

(158.) MENDEZ, supra note 1, [section] 7.04.

(159.) Id. [section] 17.03.

(160.) Id. [section] 17.04.

(161.) Id. [section] 17.02.

(162.) FED. R. EVID. 104(b) advisory committee's note.

(163.) See Bourjaily v. United States, 483 U.S. 171, 175 (1986). The Advisory Committee's Note to Federal Rule of Evidence 801(d)(2)(D) has been revised to reflect Bourjaily's standard of proof.

(164.) FED. R. EVID. 104(a).

(165.) Id. 801(d)(2).

(166.) Lilly v. Virginia, 527 U.S. 116, 125 (1999).

(167.) See United States v. Inadi, 475 U.S. 387, 395-96 (1986).

(168.) RICHARD O. LEMPERT & STEPHEN A. SALTZBURG, A MODERN APPROACH TO EVIDENCE 551-52 (2d ed. 1982).

(169.) The court refers to these declarations as "accomplice confessions." Crawford v. Washington, 124 S. Ct. 1354, 1371 (2004).

(170.) People v. Greenberger, 68 Cal. Rptr. 2d 61, 81 (Ct. App. 1997).

(171.) MCCORMICK ON EVIDENCE [section] 278 (Edward W. Cleary ed., 3d ed. 1984).

(172.) As noted above, in giving examples of "[v]arious formulations" of testimonial statements, the Court in Crawford quoted from a brief filed by the National Association of Criminal Defense Lawyers defining as testimonial statements those "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Crawford, 124 S. Ct. at 1364. Thus, the Court appears to be open to the possibility of examining the declarant's motivation in determining whether a statement is testimonial.

(173.) Lilly v. Virginia, 527 U.S. 116, 134 (1999).

(174.) Crawford, 124 S. Ct. at 1371.

(175.) Id. at 1373.

(176.) Id. at 1372.

(177.) Id. at 1370.

(178.) MENDEZ, supra note 1, [section] 9.12.

(179.) Id. [subsection] 9.09, 9.12.

(180.) 103 Cal. Rptr. 2d 492 (Ct. App. 2001).

(181.) Id. at 504. Other statements by Nicole describing her then feelings toward O.J. (e.g., that she no longer loved him) were admitted for the truth of the matter stated under the hearsay exception for statements regarding then-existing feelings. Id. Their relevance was the same, however.

(182.) Id.

(183.) CAL. EVID. CODE [section] 1370 (West Supp. 2004).

(184.) Statements made more than five years before the filing of the action or proceeding in which they are offered are inadmissible. Id. [section] 1370(a)(3).

(185.) Id. [section] 1370(a).

(186.) Id. [section] 1370(b).

(187.) In People v. Cage, 15 Cal. Rptr. 3d 846 (Ct. App. 2004), review granted, 99 P.3d 2 (Cal. 2004), the prosecution relied on section 1370 in offering a statement the victim made to an investigating police officer while the victim was in a hospital. According to the officer, the victim told him that the defendant "grabbed a piece of glass and came over and cut him." Id. at 849. The defendant was prosecuted for assaulting the victim with a deadly weapon, but the victim did not testify at the trial. The California Court of Appeal held that the use of the victim's statement did not violate the accused's Confrontation Clause rights because the statement did not qualify as a testimonial statement:
 There was no particular formality to the proceedings. Deputy Mullin
 was still trying to determine whether a crime had been committed
 and, if so, by whom. No suspect was under arrest; no trial was
 contemplated. Deputy Mullin did not summon [the victim] to a
 courtroom or a station house; he sought him out, at a neutral,
 public place. There was no "structured questioning," just an
 open-ended invitation for [the victim] to tell his story. The
 interview was not recorded. There is no evidence that Deputy Mullin
 even so much as recorded it later in a police report. Police
 questioning is not necessarily police interrogation. When people
 refer to a "police interrogation," however colloquially, they have
 in mind something far more formal and focused.


Id. at 856-57.

Of course, if what counts in determining whether a victim's statement is testimonial is the officer's state of mind, then what "people" consider to be a "police interrogation" would be largely, if not completely, immaterial. On the other hand, the formality or informality surrounding the interrogation would, of course, be circumstantial evidence of the role the officer thought he or she was discharging in interrogating a victim. So would be the stage of the proceeding--whether suspicion had or had not begun to focus on a particular suspect. But what the officer thought he or she was doing in obtaining the statement would still be the most probative evidence of whether the officer had the requisite state of mind. Deputy Mullin, however, was not questioned about his thoughts, since the trial took place before Crawford was handed down.

Cage should be compared with People v. Adams, 16 Cal. Rptr. 3d 237 (Ct. App. 2004), review granted, 99 P.3d 2 (Cal. 2004). Adams also involved a hospital interview of the victim by a police officer. Because the victim was unavailable to testify, her statement to the officer was received under section 1370 of the California Evidence Code. In her statement, the victim identified the defendant as the person who had assaulted her. The reviewing court reversed the assault conviction, holding that the officer's interview of the victim amounted to a police interrogation that qualified as testimonial under Crawford. Id. at 243-44. Unlike the Cage court, the Adams court did not engage in a nuanced analysis. As in Cage, no suspect had been arrested, no trial date had been set, and the interview took place in a hospital and not at the station house. Nonetheless, the court had no difficulty in finding that the interview was testimonial, since it was conducted by a police officer in the course of investigating a potentially criminal matter. To the Adams court, then, in such circumstances there appears to be no need to seek direct evidence of the officer's state of mind in taking a witness's statement. Indeed, the court disposed of the appeal without explicitly considering the officer's state of mind in conducting the witness interview. Id.

Under Rule 977 of the California Rules of Court, neither Cage nor Adams may be cited as precedent. The cases are cited in this Essay only to illustrate the difficulties encountered in determining the pertinent state of mind when ruling whether the hearsay offered against the accused at a trial qualifies as a testimonial statement.

(188.) In People v. Price, 15 Cal. Rptr. 3d 229 (Ct. App. 2004), the California Court of Appeal held that the use of section 1370 of the California Evidence Code against criminal defendants does not violate the Confrontation Clause where the defendant had been given an opportunity to cross-examine the declarant at the preliminary hearing about the out-of-court statement offered at the trial. Id. at 239-40. In reaching this conclusion, the court assumed, without deciding, that the statement offered under section 1370 constituted a testimonial statement under Crawford. Id.

(189.) See, e.g., CAL. PENAL CODE [subsection] 11164-11174.4 (West 2000 & Supp. 2004).

(190.) In Cage, the prosecution relied on section 1370 in offering a statement the victim made to a doctor in which the victim stated that he had been "cut" by his mother, who was on trial for assaulting the victim with a deadly weapon. The court held that the doctor's testimony relating the victim's statement did not constitute a testimonial statement under Crawford because "[n]o reasonable person in [the victim's] shoes would have expected his statements to Dr. Russell to be used prosecutorially, at defendant's trial. This is true even if he thought the doctor might relay his statement to the police." 15 Cal. Rptr. 3d at 855. It is unclear, however, whether the court correctly interpreted this aspect of Crawford. With regard to the declarant's state of mind, Crawford leaves unanswered whether the declarant's belief that he or she gave the statement for possible use in a future prosecution should be controlling and the objective test ("statements ... made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial") applied only when the evidence regarding the declarant's purpose is ambiguous. In determining whether the declarant gave the statement for testimonial purposes, the proper question under Crawford may be whether the declarant knew or should have known that the statement might be used in a future prosecution.

For the Rule 977 implications of the grant of review of Cage by the California Supreme Court, see supra note 187.

(191.) 497 U.S. 805 (1990).

(192.) Id. at 819.

(193.) Id. at 822.

(194.) In People v. Hernandez, 78 Cal. Rptr. 2d 909 (Ct. App. 1998), the trial judge found that a statement met the particularized guarantees of trustworthiness mandated by Wright. In making that finding, the judge considered some of the circumstances surrounding the making of the statement. At the time the victim made her statement to the police, she was in a long-term relationship with the accused (and, hence, had no "motive" to fabricate her accusations of violence against the accused) and was upset and crying (and therefore was seeking help rather than trying to "connive" against the accused). Id. at 913. Accordingly, the reviewing court rejected the accused's claim that the use of the victim's statement under section 1370 violated his confrontation rights. Id. However, in contravention of Wright both the trial judge and the reviewing court, appear to have considered other evidence offered at the trial to corroborate the reliability of the victim's statement. This evidence included a 911 call made by the victim and admissions made by the accused. See id The California Supreme Court granted review and remanded the case to the Court of Appeal with instructions to vacate its decision and reconsider the case in light of Wright. People v. Hernandez, 972 P.2d 149 (Cal. 1999). On reconsideration, the Court of Appeal acknowledged that Wright precluded the use of the other evidence to determine the statement's reliability. People v. Hernandez, 83 Cal. Rptr. 2d 747 (Ct. App. 1999). But the Court of Appeal nonetheless affirmed the conviction on the ground that the statement was sufficiently reliable to satisfy confrontation concerns even without the corroborating evidence. Id. at 752.

(195.) See Cage, 15 Cal. Rptr. 3d at 854-55 (holding that a victim's statement to a doctor offered under section 1370 did not qualify as a testimonial statement, but that a similar statement to a police officer made at a police station did so qualify).

For the Rule 977 implications of the grant of review, see supra note 187.

(196.) CAL. EVID. CODE [section] 1360 (West Supp. 2004). Among the factors a judge should take into consideration in determining the reliability of a child's out-of-court statements are the following: (1) whether the statements were made spontaneously, (2) whether the statements are consistent, (3) whether the child's mental state at the time of the statements indicates lack of reliability, (4) whether the child's descriptions and language demonstrate knowledge of sexual matters beyond that normally expected of children of the declarant's age, and (5) whether the child had a motive to fabricate the accusations. People v. Brodit, 72 Cal. Rptr. 2d 154, 164 (Ct. App. 1998).

(197.) CAL. EVID. CODE [section] 1360. The proponent of the statement must also give notice to the adverse party tar enough in advance of the proceeding as to provide the opponent with a fair opportunity to defend against the statement. In the case of a july trial, the notice must be given before the jurors have been sworn. Id.

(198.) People v. Eccleston, 107 Cal. Rptr. 2d 440, 449-50 (Ct. App. 2001).

(199.) People v. Roberto V., 113 Cal. Rptr. 2d 804, 822-23 (Ct. App. 2001).

(200.) Id.

(201.) In People v. Sisavath, 13 Cal. Rptr. 3d 753 (Ct. App. 2004), the court held that two statements admitted under section 1360 qualified as testimonial under Crawford. Id. at 757-58. In one of the statements, the child victim described acts of abuse to one of the police officers who responded to the mother's phone call reporting possible abuse. In the other, the child described acts of abuse to an employee of a county agency established for interviewing victims of abuse. The reviewing court found that the child's statement to the officer fell within Crawford's definition of a police interrogation. Id. Furthermore, the court rejected the prosecution's contention that the statement to the agency employee was not testimonial because, among other matters, the interview was intended for a therapeutic purpose and not for a prosecutorial purpose. Instead, the court found that the
 pertinent question is whether an objective observer would reasonably
 expect the statement to be available for use in a prosecution.
 [The victim's] interview took place after a prosecution was
 initiated, was attended by the prosecutor and the prosecutor's
 investigator, and was conducted by a person trained in forensic
 interviewing. Under these circumstances, it does not matter what
 the government's actual intent was in setting up the interview....
 It was eminently reasonable to expect that the interview would be
 available for use at trial.


Id. at 758. The victim was four years old when she gave her statements. This might explain why the court was concerned solely with the "government's" state of mind in determining whether the victim's statement to the agency employee qualified as testimonial. But it is unclear from the opinion whether the court was concerned with the prosecutor's state of mind in setting up the interview, the interviewer's state of mind in conducting the interview, or both. Moreover, in determining whether the prosecutor or the employee should have known that the interview might be used at trial, the court assessed foreseeability from the perspective of "an objective observer," and not of an objective prosecutor or a specially trained child abuse interviewer.

(202.) CAL. EVID. CODE [section] 1380 (West Supp. 2004); see also CAL. PENAL CODE [section] 368 (West 1999) (defining the new offense).

(203.) CAL. EVID. CODE [section] 1380(a)(1). In Wright, the Court said, "To be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial." 497 U.S. 805, 822 (1990).

(204.) CAL. EVID. CODE [section] 1380(a)(3).

(205.) The Sixth District of the California Court of Appeal has held that section 1380 is unconstitutional when applied to a criminal defendant. See People v. Pirwani, 14 Cal. Rptr. 3d 673, 685 (Ct. App. 2004).

(206.) In People v. Corella, 18 Cal. Rptr. 3d 770 (Ct. App. 2004), the court held that a 911 call admitted as an excited utterance against the accused did not qualify as a testimonial statement because the caller's declarations were not made '"in response to structured police questioning,'" the kind of interrogation the court found to be at issue in Crawford. Id. at 776 (quoting Crawford, 124 S. Ct. at 1365 n.4). A 911 operator, the court found, is not conducting a police interrogation in contemplation of a future prosecution but determining the appropriate response to the caller's call for assistance. Id. The opinion, however, does not explicitly foreclose an examination of the operator's mental state when a court tries to determine whether in a given instance the 911 operator was conducting the type of structured investigation that qualifies as testimonial. Consider People v. Caudillo, 19 Cal. Rptr. 3d 574 (Ct. App. 2004), where the reviewing court focused on the caller's state of mind in finding that the use of the call at the trial did not violate the accused's confrontation rights: "The caller was simply requesting help from the police by describing what she saw without thinking about whether her statements would be used at a later trial." Id. at 590.

(207.) Miranda v. Arizona, 384 U.S. 436 (1966).

Miguel A. Mendez, Adelbert H. Sweet Professor of Law, Stanford University. I am grateful for the comments of George Fisher, Barbara Gaal, and Stephen A. Saltzburg. I alone, however, am responsible for any errors.
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