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THE SHIFTING LANDSCAPE OF THE CONFRONTATION CLAUS
Courts of Appeal Continue Struggle with Crawford and Progeny
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Reinaldo Berrios, Troy Moore, Angel Rodriquez, and Felix Cruz were charged, and ultimately convicted, of a series of violent felonies in Puerto Rico and the Virgin Islands in 2004, including the murder of an off-duty police officer during an attempted robbery. They were sentenced to consecutive life sentences and dozens of years in both federal court and Virgin Island courts. The sentencing message in these cases was evident: the felons would spend the rest of their lives in prison.
That’s why the appeal of their convictions were so important—appeals that focused primarily on a claimed constitutional violation of the Confrontation Clause. While Berrios and Moore were housed in a detention facility in Guaynabo, Puerto Rico, the Government sought, and secured, pursuant to 18 U.S.C. § 2510, a Title III surveillance application to monitor the conversations of the two pre-trial detainees. The surveillance included both video and sound recordings. A treasure trove of incriminating evidence was obtained through this surveillance method. In one captured conversation as the two men enjoyed the facility’s “recreational yard,” Berrios and Moore discussed the shooting of the off-duty police officer, their respective roles in the killing, and their getaway. Referring to him by nickname, the two men identified Rodriquez as the getaway driver. And, as if that was not enough, Moore threatened to kill someone who worked at a store with his girlfriend and who was being regularly interrogated by the police.
The Title III recorded conversations between Berrios and Moore formed what the Third Circuit Court of Appeals called earlier this month “the cornerstone of the prosecution’s case against Rodriquez, Cruz, and Moore. The Third Circuit elected to use this case as its precedent ruling to resolve a number of issues surrounding the Confrontation Clause in the wake of a number of Supreme Court rulings (rulings we have discussed here and here).
In 1980 the Supreme Court handed down the definitive application of the Confrontation Clause in crime cases inOhio v. Roberts. In that case, the Court laid down what became known as the “indicia of reliability” test—an absent witness’s hearsay statements could be used in a criminal trial only if 1) the witness was unavailable at time of trial and 2) if the statements offered an “indicia of reliability,” which fell either in “a firmly rooted hearsay exception” or the prosecution made a showing of “particularized guarantees of trustworthiness.”
TheRobertstest remained the constitutional standard until twenty-four years later when the Supreme Court handed downCrawford v. Washington, which held
That, in order for “testimonial” evidence to be admissible, the Confrontation Clause of Sixth Amendment demands unavailability of the witness and a prior opportunity for cross-examination. Crawforddid not include a comprehensive definition of ‘testimonial,’ but it noted that testimonial evidence includes, among other things, prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.
Crawforddid not end the Supreme Court’s assault onRoberts. In a trilogy of subsequent cases, the Court overruledRobertsentirely. First, in 2006, the Court handed downDavis v. Washington, which explicitly held that the Confrontation Clause applies to “testimonial” hearsay statements and not to “non-testimonial” hearsay statements whose admissibility is governed solely by Federal or state rules of evidence. The Court held that statements are nontestimonial when made in the course of police interrogation under circumstances “objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”CrawfordandDavis, however, left untouched the longstanding rule of the Court’s decision inCruz v. New Yorkthat a non-testifying co-defendant’s confessionmustbe excluded, even when it only corroborates the defendant’s own confession.
The brutal assault againstRobert’s“indicia of reliability” standard took a decided turn in 2007, one year afterDavis, when the Supreme Court decidedWhorton v. Bocktingwhich held that “underCrawford… the Confrontation Clause has no application to [out-of-court non-testimonial statements] and therefore permits their admission even if theylackindicia of reliability.” The Court stated thatCrawfordeliminated Confrontation Clause protection against the admission of unreliable out-of-court nontestimonial statements. “UnderRoberts, an out-of-court nontestimonial statement not subject to prior cross-examination could not be admitted without a judicial determination regarding reliability. UnderCrawford, on the other hand, the Confrontation Clause has no application to such statements and therefore permits their admission even if they lack indicia of reliability.”
Then, last year, the Supreme Court withMichigan v. Bryantstood firmly amidst the ashes of “indicia of reliability” test and declared for all the lower courts to hear: the Confrontation Clause is limited to testimonial statements only. Nontestimonial statements made to the police under circumstances indicating they were made with the “primary purpose . . . to enable police assistance to meet an ongoing emergency” are not testimonial and their admission at trial do not violate the Confrontation Clause.
These post-Crawforddecisions by the Supreme Court put some of the federal circuits, like the Third Circuit, in a legal quandary. The Third Circuit, like most other circuits, had interpretedCrawfordto apply only to testimonial statements in the sense thatRoberts’“indicia of reliability” would continue to apply to nontestimonial hearsay statements.
In its first post-Crawforddecision, the Third Circuit inUnited States v. Hendricksheld that “[U]nless a particular hearsay statement qualifies as ‘testimonial,’ Crawford is inapplicable andRobertsstill controls.”Hendricksremained the leading precedent, as pronounced inUnited States v. Jimenez[“nontestimonial statements do not violate the Confrontation Clause and are admissible as long as ‘they are subject to a firmly rooted hearsay exception or bear an adequate indicia of reliability’”], untilBerriospresented itself. To avoid further constitutional confusion, the Third Circuit elected to useBerriosto completely adopt the Supreme Court’s jurisprudence laid down inWhorton,Davis, andBryant. The Third Circuit then laid down its new Confrontation Clause application:
“Thus, ourConfrontation Clause inquiry is twofold. First, a court should determine whether the contested statement by an out-of-court declarant qualifies as testimonial under Davis and its progeny. Second, the court should apply the appropriate safeguard. If the absent witness’s statement is testimonial, then the Confrontation Clause requires ‘unavailability and a prior opportunity for cross-examination.’ [citing Crawford]. If the statement is nontestimonial, then admissibility is governed solely by the rules of evidence. [citing Davis].
“Applying this two-part test to the Title III recording at issue here, we have little hesitation in concluding that the recorded conversation was not testimonial, and thus not subject to Confrontation Clause scrutiny. Although we lack an authoritative definition of ‘testimonial,’ we addressed the admissibility of similar Title III recordings of conversations between various nontestifying defendants and third parties. After comparing these recordings to the examples which the Supreme Court stated were definitively testimonial, such as ‘prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and police interrogations,’ we reasoned that a ‘surreptitious’ Title III recording neither qualified as ‘ex parte in-court testimony or its functional equivalent,’ nor formalized ‘extrajudicial statements.’ Cognizant that ‘a witness ‘who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not,’” we noted that ‘the surreptitiously monitored conversations and statements contained in the Title III recordings [we]re not ‘testimonial’ for purposes of Crawford.’”
The Third Circuit turned toBryantfor guidance which outlined “interrogations by law enforcement officers [that] fall squarely within [the] class of testimonial hearsay.” The appeals court pointed out thatDavisdealt with whether statements made during a 911 call to law enforcement about domestic violence qualified as “testimonial” under the Confrontation Clause. BothDavisandBryantessentially held, as explicitly stated inDavis, that statements for which “the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal investigations” are testimonial but those made to enable police to meet an ongoing emergency are not.
The Third Circuit continued its analysis inBerrios:
“It is likewise clear that, in the present case, the contested statements bear none of the characteristics exhibited by testimonial statements. There is no indication that Berrios and Moore held the objective of incriminating any of the defendants at trial when their prison yard conversation was recorded; there is no indication that they were aware of being overheard; and there is no indication that their conversation consisted of anything but ‘casual remark[s] to an acquaintance.’ [citing Crawford]. Nor do we think that a surreptitious recording falls within the category of ‘abuses’ which, historically, the Framers were concerned about eradicating from the government’s investigative practices. Consequently, we reject any suggestion that, in this circumstance, the Title III recording was testimonial, and therefore that the Confrontation Clause affords protection against the introduction of such evidence at the defendants’ trial.”
But in a significant footnote the Third Circuit made it clear that there may be times when “participants in a recorded conversation might be aware that they are being recorded, and intentionally incriminate another individual.” Thus, the appeals court qualified its ruling with this caveat: “By no means are we establishing a categorical rule: simply because we have found some Title III recordings to be nontestimonial does not mean that no Title III recordings can qualify as such. Rather, each statement should be scrutinized on its own terms to determine whether it exhibits the characteristics of a testimonial statement. [citing Bryantthat to determine whether the ‘primary purpose’ of an interrogation is ‘to enable police assistance to meet an ongoing emergency,’ which would render resulting statements nontestimonial, we objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties.’] There may be some instances, such as where the primary purpose of the declarant’s interlocutor was to elicit a testimonial statement, such that even if the declarant’s purpose was innocent, the conversation as a whole would be testimonial. Nevertheless, we are not presented with such a situation here.”
The Third Circuit then summed up its conclusion of the impact ofCrawford:
“Our conclusion that the contested statements were nontestimonial under Daviscompels us to reject the challenges levied by Rodriguez and Cruz under Bruton v. United States. In Bruton, the Court held that theConfrontation Clause bars the use of the confession of a nontestifying criminal defendant in a joint trial to the extent that it directly inculpates a co-defendant, though it might be otherwise admissible against the confessing defendant. ‘We have interpreted Bruton expansively, holding that it applies not only to custodial confessions, but also when the statements of the non-testifying co-defendant were made to family or friends, and are otherwise inadmissible hearsay. However, it is clear that Bruton is no more than a by-product of the Confrontation Clause, the Court’s holdings inDavisandCrawfordlikewise limit Bruton to testimonial statements. Any protection provided by Bruton is therefore only afforded to the same extent as the Confrontation Clause, which requires that the challenged statement qualify as testimonial. To the extent that we have held otherwise, we no longer follow those holdings. And because, as discussed above, we have found the Title III recordings not to constitute testimonial hearsay, Bruton provides no solace for Rodriguez or Cruz.”
It is good that the constitutional landscape ofRoberts’“indicia of reliability” has been cleared, but that does not necessarily meanCrawford, and its progeny, provide clear guidance in Confrontation Clause jurisprudence. This is yet to be determined. However, we are pleased that the Third Circuit, as least, kept the door open to a case-by-case analysis of Title III recordings. The Court expressly stated they did not intend to establish a “categorical rule: simply because we have foundsomeTitle III recordings to be nontestimonial does not mean thatnoTitle III recordings can qualify as such. Rather, each statement should be scrutinized on its own terms to determine whether it exhibits the characteristics of a testimonial statement.” As the court pointed out, a guilty defendant, standing on a prison recreation yard knowing he is being recorded, or doing so at the direction of police, could incriminate an innocent or less culpable third party, to deflect guilt or level of culpability away from him to someone else. In such instances, where the primary purpose is to elicit a testimony statement, the incriminated individual should have the Sixth Amendment right to confront and cross-examine the individual making the incriminating statements.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd isBoard Certified in Criminal Lawby the Texas Board of Legal Specialization
Take the first step toward protecting your freedom by contacting us now
Testimonials
John T. Floyd Law Firm
3730 Kirby Drive # 750, Houston
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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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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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