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Comments on Criminal Issues
JULY 25, 2007
A RIGHT OF CONFRONTATION
The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right to confront and cross-examine adverse witnesses against him. Inherent in this Sixth Amendment guarantee is the right of the defendant to be present at every stage of the criminal trial in order to effectively cross-examine adverse witnesses. See, Pointer v. Texas, 380 U.S. 400, 403 (1961). See also: 36 Geo.L.J.Ann,Rev.Crim.Proc., 628 (2007).
The root of the Confrontation Clause rest in the constitutional premise that “[F]ace-to-face confrontation enhances the accuracy of factfinding by reducing the risk that a witness will wrongfully implicate an innocent person.” See, Maryland v. Craig, 497 U.S. 836, 846 (1990). As the Supreme Court observed in Coy v. Iowa: “It is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back’.” 487 U.S. 1012, 1019 (1988).
The right of confrontation guarantee frequently finds itself embroiled in sex offense cases. For example, a criminal defendant’s confrontation right violated in a sex offense case involving a minor after the defendant was denied an opportunity by the trial court to cross-examine a prospective juror who was a social worker and made expert statements during voir dire that child sexual abuse do not lie. See, Mach v. Stewart, 137 F.3d 630, 633 (9th Cir. 1998).
While the Supreme Court in Craig reaffirmed the “face-to-face” value of the Sixth Amendment’s confrontation guarantee, it held that the right is not absolute. Id., 497 U.S. at 847. See also: Coy, supra, 487 U.S. at 1016. The Craig court said the right must step aside when “necessary to further an important public policy [if] the reliability of the testimony is otherwise assured.” Id., 497 U.S. at 847.
The “public policy” concern confront by the Supreme Court in Craig was the need to protect the “physical and psychological well-being” of children. Balanced against this social need, the Supreme Court said the Sixth Amendment is not violated when a criminal defendant is denied “face-to-face” confrontation because his/her presence creates the potential of courtroom trauma. Id., 497 U.S. at 854-56. In Craig the child victim testified via closed circuit television after the trial court determined that the child would suffer “severe emotional distress” if required to testify in the presence of the defendant. Id., 497 U.S. at 857-58. See also: 36 Geo.L.J. at 630, n. 1949. See also: United States v. Weekly, 139 F.3d 747, 752-53 (6th Cir. 1997)[no Confrontation Clause violation when 12-year-old kidnapped victim allowed to testify via two-way closed circuit television because child victim was under oath and subject to cross-examination].
In Coy v. Iowa, however, the Supreme Court before Craig held use of a screen to shield the victim from defendant violated the Confrontation Clause because a “legislatively imposed presumption of trauma” was not sufficient to justify an exception to face-to-face confrontation. Id., 487 U.S. at 1021. The Fifth Circuit Court of Appeals followed this lead by holding Confrontation Clause violation with use of videotaped testimony in case in which the record did not established child victim’s competency prior to testifying, or that the victim had been placed under oath, or that the defendant had an opportunity to cross-examine victim. See, Lowery v. Collins, 988 F.2d 1364, 1369 (5th Cir.), amended by 996 F.2d 770 (5th Cir. 1993).
The U.S. Supreme Court has been fairly consistent in its desire to keep the Sixth Amendment confrontation right constitutionally viable. For example, in Olden v. Kentucky, 488 U.S. 227 (1988) (per curiam) in a kidnapping/rape case found a Sixth Amendment violation because the defendant was not permitted to cross-examine the victim about cohabitation with a boyfriend. Id., at 231. See also: Davis v. Alabama, 415 U.S. 308, 316-17 (1974) [confrontation right violated when defendant not allowed to cross-examine witness about possible bias which may have led to a misidentification of the defendant].
The federal circuits have been equally circumspect in their desire to protect the core values of the Confrontation Clause. The Second Circuit in Henry v. Specked, 22 F.3d 1209 (2nd Cir. 1994) found a Sixth Amendment violation when the trial court refused to allow cross-examination of a child witness about possible biases. Id., at 1214-15. The Seventh Circuit found a Confrontation Clause violation after the trial court prevent a defendant from cross-examining a rape victim about a prior false rape claim because the testimony would have demonstrated a motive for lying. See, Richmond v. Kingston, 240 F.3d 590, 591-02 (7th Cir. 2001). See also: United States v. Platero, 72 F.3d 806, 816 (10th Cir. 1995) [Sixth Amendment violation when defendant refused opportunity to question sexual assault victim about sexual relationship with third party which could have formed the basis for a false allegation against defendant].
Federal and state prosecutors often try to shield its witnesses from testifying about investigatory reports by saying they are classified or business records. The Eleventh Circuit in United States v. Baptista-Rodriquez, 17 F.3d 1354 (11th Cir. 1994) found a Confrontation Clause violation when the trial court prohibited a defendant from questioning an FBI agent about the contents or existence of a classified document which purportedly revealed the termination of the defendant’s relationship with the FBI and the appeals court found this evidence relevant to the defense. Id., at 1366-67.
Significantly, the Confrontation Clause does not bar the admission of out-of-court statements provided the person making the statement testifies at trial and is subject to full cross-examination concerning the prior statements. See, California v. Green, 399 U.S. 149, 158 (1970). Accord: Crawford v. Washington, 541 U.S. 36, 53-54 (2004). The Fifth Circuit has interpreted this rule to allow the admission of a videotape of a victim’s out-of-court statements because the victim was available for cross-examination. See, Carson v. Collins, 993 F.2d 481, 484 (5th Cir. 1993).
The Supreme Court in Crawford drew a sharp distinction between what it called “testimonial” and “nontestimonial” evidence. Id., at 68. The Georgetown Law Journal, interpreting Crawford, said “a statement is testimonial when, in the totality of circumstances, police interrogation is not in response to an ongoing emergency, but rather to investigate past events potentially relevant to criminal proceedings. The Court held that the admission of a ‘testimonial’ hearsay statement violates the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. The Supreme Court has held that if the hearsay statement is ‘nontestimonial,’ the Confrontation Clause does not apply and admissibility is governed by the applicable jurisdiction’s rules of evidence.” See, 36 Geo.L.J., at 1641-43. See also: Crawford v. Washington, supra, 541 U.S. at 68; Davis v. Washington, 126 S.Ct. 2266, 2273-74 (2006).
The Crawford rule has been applied to a variety of criminal trial situations. For example, the rule applied to a co-defendant’s post-arrest statements against a defendant because they were used to establish a conspiracy to commit a robbery. See, United States v. Samos, 449 F.3d 95, 100 (2nd Cir. 2005). Further, statements made to police while riding in a police vehicle triggered Crawford rule because the declarant reasonably had to know the statements would be used against the defendant. See, United States v. Hinton, 423 F.3d 355, 360-61 (3rd Cir. 2005).
But in United States v. Goldstein, 442 F.3d 777 (2nd Cir. 2006) the appeals court said that the Crawford rule did not apply to exhibits and documents from bank industry because declarants did not reasonably contemplate their use at a criminal trial. Id., at 785. The Fifth Circuit has held that the Crawford rule does not apply to “spontaneous out-of-court statements made outside any arguably judicial or investigatory context” because they are not testimonial. See, Ramirez v. Dretke, 398 F.3d 691, 695 (5th Cir. 2005). See also: United States v. Tolliver, 454 F.3d 660, 665 (7th Cir. 2006) [Crawford rule not applicable to tape recording of a conversation between defendant and informant because defendant did not expect it would be used at a criminal trial].
The Supreme Court in Idaho v. Wright addressed the issue of what is known as “the residual hearsay exception,” finding that the exception is not firmly rooted for purposes of Confrontational Clause analysis. 497 U.S. 805, 817-18 (1990). See also: 36 Geo.L.J., at 647. In Wright the Supreme Court found that the admission of a doctor’s testimony about a victim’s statements concerning her sister’s abuse under Idaho’s residual hearsay exception violated the defendant’s confrontation rights because the exception is not firmly rooted. Id.
Government prosecutors often use the residual hearsay exception and the business records exception to introduce documentary evidence not supported by in-court testimony. For example, the Fifth Circuit has held that the Confrontation Clause is not violated by the admission of foreign bank records under the residual hearsay exception because the records had sufficient trustworthiness. See, United States v. Wilson, 249 F.3d 366, 375-76 (5th cir. 2001), overruled in part on other grounds by Whitfield v. United States, 543 U.S. 209 (2005). See also: United States v. Dumeisi, 424 F.3d 566, 576-77 (7th Cir. 2005) [no confrontation violation by admission of Iraqi Intelligence File because trial court attached guarantee of trustworthiness normally associated with business records exception].
However, there is ample post-Wright case authority that refused to follow lead of the Fifth and Seventh circuits. The First Circuit, for example, in United States v. Trenkler held that the Confrontation Clause was violated with the admission of the results of a computer database search because the search lacked a particularized guarantee of trustworthiness. See: 61 F.3d 45, 58 (1st Cir. 1995). See also: Schaal v. Gammon, 233 F.3d 1103, 1108 (8th Cir. 2000) [Confrontation Clause violation by admission of videotape with 7-year-old rape victim because tape did not offer sufficient guarantee of trustworthiness].
In the wake of Crawford, the Sixth Amendment’s Confrontation Clause guarantee will continue to evolve and produce federal circuit conflict. The best rule of thumb is to timely object to any prosecutorial attempt to introduce any questionable testimonial and nontestimonial evidence. The defense should always work toward acquittal but be prepared for a post-conviction appeal.