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HARDY V. CROSS: CONFRONTATION CLAUSE QUAGMIRED IN LEGAL UNCERTAINTY
Confusing Logic from SCOTUS and Conflict Among Appellate Courts Leave Trial Courts Guessing The Meaning Of Confrontation
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
The Sixth Amendment is one of the most important amendments of the United States Constitution. It ensures that an “accused shall enjoy the right … to be confronted with witnesses against him.” In 1988 the U.S. Supreme Court, in Coy v. Iowa, observed that “it is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’” Just two years later, in Maryland v. Craig, the Court made this follow up observation: “[F]ace-to-face confrontation enhances the accuracy of fact-finding by reducing the risk that a witness will wrongfully implicate an innocent person.” That observation is critically important because, as pointed out by the New York-based The Innocent Project, roughly 75 percent of the nation’s 282 DNA exonerations involved eyewitness misidentification.
Since the Confrontation Clause was forcefully made applicable to the states through the Fourteenth Amendment by the Supreme Court in 1965, in Pointer v. Texas, the Sixth Amendment has been a source of evolving, though conflicting, change in a long line of state cases. In an effort to resolve some of the conflict associated with Sixth Amendment cases, the Supreme Court in 2004 handed down Crawford v. Washington which held that a major underpinning of the Sixth Amendment is to prevent the admission of hearsay evidence because a criminal defendant cannot cross-examine what is called “out-of-court” testimony.
Crawford clarified the difference between “testimonial” and “nontestimonial” hearsay evidence. Crawford specifically held that the use of testimonial hearsay violates a criminal defendant’s confrontation rights unless the individual making the hearsay statements is unavailable at trial and the defendant had a prior opportunity to cross-examine him/her. Non-testimonial hearsay, on the other hand, does not violate the Confrontation Clause and its admission would be determined by local rules of evidence. Crawford rejected the use of recorded statements given to the police by a wife incriminating her husband in a stabbing incident but who refused to testify against her husband by invoking the marital privilege (here).
Two years later, in Davis v. Washington, the Supreme Court provided a more definitive clarification of testimonial evidence. Davis held that hearsay is testimonial when, under the “totality of the circumstances,” a law enforcement interrogation is part of an investigation into past events about a case and not in response to an “ongoing emergency.” Davis upheld the use of out-of-court statements made to a 911 operator during an emergency call for police assistance which implicated the defendant in domestic violence. Then, in 2009 the Supreme Court handed decided Giles v. California which involved the use of incriminating statements against a husband/accused given to the police by a wife several weeks before she was killed by the accused. Giles held that the incriminating testimonial statements of the deceased wife used against the accused violated the Confrontation Clause.
Crawford, Davis, and Giles seemed to have resolved the issue that witness statements to law enforcement authorities could not serve as a substitute to live, face-to-face actual witness testimony unless obtained from a third party during a response to an “ongoing emergency,” such as a 911 operator. But as the confrontation landscape seemed to settle, the Supreme Court in February 2011 issued Michigan v. Bryant, a case involving a defendant convicted of second-degree murder on the basis of statements made by a mortally wounded victim given to the police as he lay dying on a gas station parking lot—a statement that identified the defendant as the assailant who shot him. Bryant held the victim’s dying statements were actually “nontestimonial” because they were given to “enable police assistance to meet an ongoing emergency” and were not given as part of a criminal investigation. Reasoning that “not all those questioned by the police are witnesses and not all ‘interrogations by law enforcement officers’ … are subject to the Confrontation Clause.”
Bryant befuddles Giles. The police in Giles were investigating complaints of domestic violence between husband/wife. Several weeks before the husband killed the wife, she told the police that her husband had threatened to kill her. The Supreme Court said those statements violated the Confrontation Clause. In Bryant the police were responding to a call that a man was on the ground in a gas station parking lot. Upon arrival, the police realized the man had been shot. The first question the police asked the dying man was who shot him. He identified his killer. The police were not responding to an ongoing medical emergency. Like Giles, they were asking questions in connection with a law enforcement investigation—“who shot you?” has nothing to do with an ongoing medical emergency.
It has indeed been long recognized that “unavailability of a witness” is an exception to the “hearsay rule” and the Confrontation Clause. “Unavailability of a witness” was first recognized by the Supreme Court in 1896 in Mattox v. United States. Mattox held the Confrontation Clause is not violated when the sworn testimony of a witness, who testified at judicial proceeding at which he was subject to adverse cross-examination, was introduced at a subsequent judicial proceeding because the witness was unavailable. More than seven decades later the Supreme Court, in Barber v. Page, clarified Mattox by saying “a witness is not ‘unavailable’ for purposes of the … confrontation requirement, unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.”
In 1980, some twelve years after Barber, the Supreme Court, in Ohio v. Roberts, applied the “good faith” rule in a non-testifying witness case in which the prosecutor spoke to the witness’ mother (who did not know where her daughter was or how to contact her) and issued five subpoenas in the witness’ name to her parents residence during a four-month period. Roberts held that “the lengths to which the prosecution must go to produce a witness is a question of reasonableness.” While Crawford did not overrule the “good faith” rule endorsed in Roberts, it did specifically overrule Roberts’ premise that “testimonial” hearsay did not violate the Confrontation Clause in cases where a witness gives the police a statement but refuses to testify at trial and the statement is subsequently used at a trial at which the statement could not be cross-examined.
On December 12, 2011, the Supreme Court once again muddied the confrontation waters in Hardy v. Cross. Cross involved a situation where a sexual assault victim testified against the accused at trial but the jury was unable to reach a verdict on the charge. The judge declared a mistrial, but the victim disappeared before a re-trial could take place. The State made a number of attempts to locate the victim before advising the trial court that she could not be located and asking the court to declare the witness “unavailable” for trial. The court granted the State’s unavailability request and allowed the victim’s testimony from the first trial to be used against the accused at his re-trial. The jury found the accused guilty.
A very conservative Seventh Circuit Court of Appeals reversed Cross’ conviction, citing three reasons why it felt the State’s efforts to produce the witness were inadequate. First, the appeals court said the State failed to contact the victim’s boyfriend or other friends. Second, the State did not make any inquiries at the cosmetology school where the victim had been enrolled. And, finally, the State failed to serve a subpoena on the victim when she informed prosecutors she would not testify at the re-trial.
In reversing the Seventh Circuit, the Supreme Court in Cross breathed new life into Roberts and weakened Crawford, saying: “As we observed in Roberts, when a witness disappears before trial, it is always possible to think of additional steps that the prosecution might have taken to secure the witness’ presence … but the Sixth Amendment does not require the prosecution to exhaust every avenue of inquiry, no matter how unpromising.”
There is little wonder that the federal circuits are steadily issuing conflicting decisions in light of the Supreme Court’s convoluted approach to state confrontation cases. For example, five years after Crawford, a sharply divided Court decided Melendez-Dias v. Massachusetts which held Crawford prohibited a State from using lab examination “affidavits” attesting to the quantity and nature of a seized drug without producing the individual who conducted the examination. The majority five justices found the affidavits had been prepared for express use at trial which amounted to witness testimony subject to cross-examination. The four remaining dissenting justices argued that Melendez-Diaz was a “mistaken extension” of Crawford. Justice Kennedy, however, made it clear that his support for Melendez-Diaz was limited to “formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” Last June the Supreme Court, in Bullcoming v. New Mexico, reaffirmed Melendez-Diaz in a DWI, holding that a “forensic lab report” which certified a “machine-read-out of blood alcohol level” could not be introduced at trial without the “expert” who prepared the report (here).
On December 9, 2011, in the wake of Melendez-Diaz and Bullcoming, the First Circuit, in United States v. Ramos-Gonzalez, found a Confrontation Clause violation because the trial court permitted a chemist to testify about the “results of a drug analysis he did not conduct.” Just seventeen days earlier, the First Circuit, in Nardi v. Pepe, found no confrontation problem with Massachusetts using a substitute “expert” to testify about the results, and implications, of an autopsy report in a murder case prepared by a doctor who retired to Florida with medical problems and, thus, unavailable for trial. The Nardi trial occurred before Melendez-Diaz and Bullcoming but after Crawford which forced the First Circuit to confine its legal analysis to Crawford. While the appeals court found no violation with the author of an autopsy report not testifying, the court made the following observation which reflects the uncertainty of confrontation jurisprudence since Crawford:
“Abstractly, an autopsy report can be distinguished from, or assimilated to, the sworn documents in Melendez-Diaz and Bullcoming, and it is uncertain how the [Supreme] Court would resolve the question. We [have] treated such reports as not covered by the Confrontation Clause … but the law has continued to evolve and no one can be certain what the Supreme Court would say about that issue today.”
The uncertainty expressed by the First Circuit is precisely why the Ninth Circuit on December 12, 2011—just three weeks after Nardi—in Merolillo v. Yates, reached a completely opposite finding relative to autopsy reports. The appeals court found a confrontation violation because the State elicited an absent pathologist’s opinion about an autopsy when cross examining a defense expert about a conflicting opinion as to cause of death. The Merolillo facts are as follows:
“At trial in January 2001, Dr. Garber was not called to testify. Rather, the prosecution called two other pathologists to testify—Dr. Cohen, the head pathologist from the coroner’s office, and Dr. Bloor, a professor of medicine and pathology from the University of California, San Diego. The defense again called Dr. Herrmann.
“Dr. Garber was not called to testify nor was his autopsy report admitted into evidence. Nevertheless, over defense counsel’s repeated objections, Dr. Garber’s opinion was elicited by the prosecution during cross-examination of the defense expert, Dr. Herrmann. Dr. Herrmann was asked to explain his disagreement with Dr. Garber’s opinion that head trauma contributed to Mrs. Chromy’s death. In response, Dr. Herrmann testified that he believed Mrs. Chromy’s pre-existing medical conditions likely contributed to the cause of death, but that neither head trauma nor torso trauma contributed to her death. Earlier in the trial, the two experts called by the prosecution had not adopted Dr. Garber’s opinion. Dr. Cohen had testified that torso trauma may have contributed to the cause of death, but gave conflicting testimony as to whether head trauma may have contributed to her death or to the cause of death. Dr. Bloor testified that torso trauma contributed to the cause of death, but that head trauma did not. Therefore, Dr. Garber’s inadmissible opinion was the only expert opinion provided to the jury that head trauma definitely contributed to Mrs. Chromy’s death.
“All the pathologists agreed that the immediate cause of Mrs. Chromy’s death was a dissecting aortic aneurysm, also called an acute aortic dissection. But they disagreed on whether the aneurysm was caused by the trauma inflicted during the carjacking or whether it developed later, caused by other factors. The experts testified that an aneurysm can be caused by long-standing hypertension, atherosclerosis, various syndromes, and trauma. Mrs. Chromy had heart disease, hypertension and severe atherosclerosis, as well as a prior history of strokes.”
The Ninth Circuit not only found constitutional error in the prosecution getting Dr. Garber’s autopsy opinion before the jury, albeit during cross-examination of a defense witness, but also concluded the error was sufficiently prejudicial to warrant a reversal of Merolillo’s conviction.
We suspect the uncertainty will continue to increase as the Supreme Court continues to send out mixed signals about the parameters of the Confrontation Clause. The Sixth Amendment is fairly straight forward: “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him…” It should be an equally straight forward task to develop a simple rule guarantees this fundamental right.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization
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John T. Floyd Law Firm
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What I liked the most was that he actually returned my phone after leaving a message unlike pretty much everyone else I called prior. He listened and answered my question with the best … More advice that would benefit me the most. I was actually lost from moving to Texas from a different state we’re laws vary and he pointed me toward the right direction to get a understanding of if I need to do business with him now or after I contact a lawyer in my home state.
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John is honestly the best! The whole team is. He answered me in a timely manner and helped me when my friend was going through a situation in Houston, Texas as an inmate. He was so … More thorough, honest, and without charging me sent me so much information because I was out of the loop. He never once tried to take you for your money, he did all that he could to. help me and I can't thank him enough.
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I have used John on two occasions and found him to have full knowledge of Texas law, diligent, creative in plan, and aggressive in defense. He is the best criminal defense attorney … More in the State of Texas. No reason to look elsewhere.
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Attorney Floyd replied very timely to my inquiry and he provided practical advice. I will not hesitate to contact him in the future if I need additional legal counsel.
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Very knowledgeable and professional. I called and left a message Friday morning and before end of business that day I received a call back.Positive
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Excellent service and a lawyer that doesn't lie. He does what he says. JW recommends him.
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One of the best services Ive used in awhile. Thank you for all the help and answers. You got my life back. Thank youPositive
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Im impressed. This guy was polite and professional and most important...he listened.
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Good experience and very good lawyer
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It was a pleasure speaking with John. He is knowledgeable and has a true desire to help the people of society. I turned to him for some guidance of a long-standing issue. He never … More rushed our conversation and went out of his way to look into the details to provide the right answer as well as assist me anyway he could. Thank you for our conversations and I wish your and your firm the best. If you need a lawyer, John Floyd is your guy!
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John represented me in court for roughly 2 years. I won't (and shouldn't) get into any serious details, but let me tell you that I couldn't have chosen anyone better. … More Seriously.Every appearance in court I felt very comfortable. The judge and DA's had a high regard for his reputation. There is a time I recall where simply his presence greatly impacted the court's interpretation of my case and persons. We were in front of the stand and the judge could not stop talking about John's prestige and past accomplishments and how that took in relation to my case. I kept silent in front of the judge, but I observed then that John's popularity and reputation within the court had already given me a better looking rapport with the judge. Let me tell you, I never had more confidence then, knowing that the judge held him in such high regard.This is not to mention how personable John is. I'll be honest that during the stress of court, sharing a laugh with your lawyer helps a lot. This may sound a lot, but I really appreciated the relationship we had then. This is also not to mention that he was able to deal very well with any DA that rotated over the years. Seriously, John was great, prompt with information and very hands on with my case. I had great peace those 2 years until everything wrapped up.If you're looking for a lawyer, I highly, HIGHLY recommend the John T. Floyd Law Firm. He IS nationally renowned, you know. He'll get the job done to the utmost confidence. He's very experienced and has a great record to boot. I am glad to have had him represent me in court and trust me that I never thought I'd ever say that (and whoever does?). We explored every avenue of victory together and I personally enjoyed the experience, despite the seriousness of the accusation.If you have a case that needs to be represented at the highest levels, choose John T. Floyd. He's a good man and very good at what he does. Him and his team has the experience you need to make the best decisions and options to get the best outcome for your case. We got the best result I could possibly ask for, thank God.Seriously. Hire John. He knows what he's doing.Seriously.
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One of the few honest lawyers I have ever talked to. His complimentary consultation was knowledgeable and thorough. He knew exactly what the issue was and how to handle it. His candid … More appraisal of the situation and how to proceed saved me thousands of dollars in legal fees. If you have a case requiring expertise in John's area of practice, look no further. Hire this man!
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He took time out of his day to answer my legal questions and didn’t even charge me. I would definitely recommend him to you.
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Gave free consultation on getting gun rights back. He truly cares about gun rights and getting you the help you deserve. 100% worth a callPositive
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Very professional, great quality work, and very friendly and helpful. Overall, their service is phenomenal. I recommend Mr. Floyd to anyone.
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Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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He was honest , knowledgeable , and professional about what we talked about. Most lawyers are just about the money , but not john.Positive
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He was very truthful and honest with us very great man I would recommend him and we would use him again
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Very professional honest and works hard currently working my husband’s appeal I pray he does his best workPositive
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I contacted John T. Floyd Law firm and I was very satisfied with service extremely helpful and friendly thank you Mr. FloydPositive
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This law frim was informative,great response time ,and the attorney called back not some secretary or legal assistant thank u guys for all your help wish it was more like youPositive … More
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I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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He explained my case better then any other lawyerPositive
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Very informative
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Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
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Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
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I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
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I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
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It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
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Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
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I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
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John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
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What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
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Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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Great service, very knowledgable and happy to help with any questions I had
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Quick to action and helpful and knowledgeable with entertainment industry based issues!
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Responded on a holiday week. Very knowledgeable and reassuring.
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Very professional
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I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
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The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
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From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
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I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
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These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
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John and Chris are true professionals! Love those guys like family!
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Mr. Floyd and his team are very knowledgeable, informative, and helpful.
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A team you can depend on to stand up and fight for you to prove the truth the whole truth!
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Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
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The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
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I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
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I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
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Extremely helpful!!! Helping me understand the law.
John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization
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