Vol. 77, No. 5, May 2004

Hearsay and the Confrontation Clause

by Steven M. Biskupic

The rules of evidence may provide the basic framework for admission of trial testimony, but the U.S. Supreme Court has issued a strong reminder that the constitutional underpinnings of trial testimony should not be ignored and, more importantly, cannot be trumped. In March 2004, the Court in Crawford v. Washington overturned legal precedent that had been used in Wisconsin state and federal criminal cases to admit certain hearsay statements under a reliability test.¹ The Court held that regardless of reliability, the Sixth Amendment mandates that an accused has the right to cross examine any witness whose out-of-court statement is "testimonial" in nature.

If no opportunity for cross-examination has taken place, the statement cannot be admitted. With reference to an infamous English case of 1603, the new decision essentially overrules lower court reliance on a 1980 U.S. Supreme Court decision that placed emphasis on reliability as the controlling factor.² Instead, the right to cross examine is paramount.

This article reviews the issues involved in the Supreme Court's decision, the prior precedent as applied in two Wisconsin cases, and the new rule's effect on future criminal cases in both state and federal courts.

Hearsay, the Sixth Amendment, and Reliability

Hearsay is an out-of-court statement "offered in evidence to prove the truth of the matter asserted."³ Although hearsay is generally prohibited under the rules of evidence, most litigators know that those same rules provide numerous exceptions.

Prior statements of witnesses, coconspirator statements, recorded recollections, business records, statements against interest - these are just a few of the many hearsay exceptions routinely applied in court.⁴

The rules also provide a catch-all - or "residual exception" - that allows the admission of hearsay not specifically covered by the rules, if the hearsay evidence would "serve the general purposes of the rules" and "provide equivalent circumstantial guarantees of trustworthiness."⁵ Combined, these rules allow for the routine admission of statements made by persons other than those testifying at trial.

The Sixth Amendment, however, provides that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." In other words, a criminal defendant is afforded the right to confront, through cross-examination, those making statements against him or her.

The intersection of the Sixth Amendment and the hearsay rules has not been one of absolute contrast. Despite a witness being unavailable for face-to-face courtroom confrontation, the courts have found no constitutional violation if: 1) the witness was genuinely unavailable; and 2) the statement has "adequate indicia of reliability."⁶

"Reliability" has been the subject of its own test. Under both federal and state standards, reliability has been judged to depend on affirmative answers to at least two questions: 1) does the evidence support that the out-of-court witness actually made the statement; and 2) was the substance of the statement inherently trustworthy?⁷ Other decisions have added a third question: was the hearsay exception at issue firmly rooted in criminal practice?⁸

Accomplice Statements

Perhaps the most significant application of these standards in criminal cases is the admission of out-of-court statements of an alleged accomplice implicating the person who is on trial. Two Wisconsin cases, one state and one federal, provide examples.

In State v. Bintz,⁹ the defendant, Robert Bintz, was one of two brothers accused of the first-degree murder of a Green Bay bartender. The other brother, David, had admitted to police (and a cell mate) that he and Robert had committed the murder. Tried separately, both brothers were convicted, in part, on the basis of David's admission.

On appeal, Robert challenged the admission of David's prior out-of-court statement. The court upheld the admission of the statement in Robert's trial. The court found that under the hearsay rules, because David had invoked his Fifth Amendment right against self-incrimination, David was "unavailable" as a witness in Robert's trial. This finding permitted the admission of David's statement as one against the penal interest of the declarant, a recognized hearsay exception.¹⁰ In essence, because David was admitting to a heinous crime, the statement, which also implicated Robert, was admissible as evidence. The Sixth Amendment analysis was separate, but flowed from this same framework. David's statement met the test of inherent reliability because the declarant was admitting to a serious crime.

A similar analysis was done in federal court in United States v. Seavoy,¹¹ a case involving two brothers who were accused of robbing a bank in Pembine in far northeastern Wisconsin. One brother, Robert, had pled guilty. At the hearing to accept his guilty plea, Robert, under oath, told the district court that he and his brother Ronald had committed the armed robbery.

At Ronald's trial, however, Robert refused to testify. The judge in Ronald's trial then allowed prosecutors to introduce Robert's testimony from his guilty plea hearing, and Ronald was convicted as well.

On appeal, the Seventh Circuit Court of Appeals upheld the use of the guilty plea transcript of Robert's statement. The court found that the prior testimony of an unavailable witness met the requirements of trustworthiness and reliability under both the residual hearsay exception and the requirements of the Sixth Amendment. The statement was made under oath and in the presence of a judge, was against the declarant's penal interest, reflected personal knowledge, and was amply corroborated by the other evidence presented at trial.

In both of these cases, the defendants were convicted based, in part, on the out-of-court statement of an accomplice who did not testify at trial.

Crawford and Precedent from 1603

The U.S. Supreme Court's most recent analysis of hearsay and the Sixth Amendment also arose from a case involving family members as potential accomplices.¹² Michael Crawford was accused of stabbing a man who allegedly tried to rape Crawford's wife. The wife gave a statement to police officers, and the officers taped the statement. She admitted being present when her husband stabbed the man and she called into question whether her husband was acting in self-defense. At trial, the wife's in-court testimony was excluded under the state marital privilege, which prohibits one spouse from testifying against the other without the other spouse's consent. Her prior recorded statement, however, was admitted as permissible hearsay as a statement against penal interest. Based in part on that evidence, the husband was convicted.

In a 7-2 decision, the U.S. Supreme Court reversed the conviction. Writing for the majority, Justice Scalia held that the reliability test could not usurp the fundamental purpose of the Sixth Amendment: that is, allowing a defendant to confront an accuser.

Much of the decision traces the historical underpinnings of the Sixth Amendment. Of particular importance, according to the Court, was the 1603 English treason trial of Sir Walter Raleigh. He was convicted and put to death on the basis of an out-of-court accomplice statement obtained by the Crown. Raleigh was never permitted a face-to-face confrontation of his accuser. His death provoked outrage at the fundamental unfairness of convicting a person based on such evidence.

This and other historical precedent led the Framers to insist on a right of confrontation in criminal trials. Said Scalia, "The Sixth Amendment must be interpreted with this focus in mind."¹³

The question for the Court, then, was not the inherent reliability of a statement, but whether a defendant had the ability to challenge, through cross-examination, the substance of what would otherwise be considered testimonial evidence. Witness statements taken by police officers or judges, whether sworn or not, were the precise type of "testimonial" evidence underlying the Sixth Amendment's concern with the right of confrontation.¹⁴

Besides relying on the historical underpinnings of the Sixth Amendment, the decision also challenged the wisdom and consistency of a constitutional framework based on "reliability." According to the Court, "Reliability is an amorphous, if not entirely subjective concept. There are countless factors bearing on whether a statement is reliable... By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to [the Framers'] design."¹⁵

If testimonial evidence is at issue, the defendant on trial must have (or previously have had) an opportunity for cross-examination of the witness providing that evidence.

"Testimonial" Evidence

The future significance of Crawford rests on the definition of "testimonial" evidence. The Supreme Court decision explicitly refused to provide a definition, but said that "at a minimum" the term includes police interrogations and testimony at a preliminary hearing, before a grand jury, or at a prior trial.¹⁶ Given that holding, an accomplice statement that is either recorded by a police officer or taken under oath by a judge likely will not be admissible without the accomplice's in-court testimony, unless the defendant had a prior opportunity for cross-examination.

At the same time, however, the Crawford decision's reliance on "testimonial" evidence explicitly left open flexibility (including a reliability test) for the use of nontestimonial hearsay evidence. This type of evidence, according to the Court, did not implicate core Sixth Amendment concerns and should be more freely admitted at trial. The Court cited business records and coconspirator statements as two hearsay exceptions that do not involve testimonial evidence and thus do not require the Sixth Amendment right of confrontation.¹⁷

The reference to business records gives support to other existing hearsay exceptions on prior writings or recordings, such as recorded recollections, medical records, and public documents. The coconspirator statements are akin to, and based on, prior statements of the defendant or the defendant's agent.¹⁸ These also should be unaffected. In addition, the Crawford decision itself raised, but did not decide, whether dying declarations are an exception inherent in the Sixth Amendment.¹⁹

Conclusion

The rules of evidence provide flexibility in judicial determinations about what evidence should be admitted at trial. Issues regarding hearsay can be considered under concepts of trustworthiness and reliability. But only to a point. Evidence that meets the hearsay rule must still satisfy the Sixth Amendment requirement that a defendant be allowed to confront an accuser. If an accuser's out-of-court statement is testimonial in nature, the statement must be excluded unless the defendant has been provided an opportunity for cross-examination.

Endnotes

¹Crawford v. Washington, 124 S. Ct. 1354 (2004).

²See id. at 1359 (citing Ohio v. Roberts, 448 U.S. 56 (1980)).

³Fed. R. Evid. 801(c). The companion Wisconsin rules of evidence are at Wis. Stat. section 908. Because of the author's familiarity with the federal rules, citations are generally to that source.

⁴Fed. R. Evid. 803, 804.

⁵Fed. R. Evid. 807.

⁶See, e.g., Ohio v. Roberts, 448 U.S. 56 (1980); United States v. Seavoy, 995 F.2d 1414, 1420 (7th Cir. 1993).

⁷Id.

⁸State v. Bintz, 2002 WI App 204, 257 Wis. 2d 177, 183-84, 650 N.W.2d 913, 916.

⁹Id.

¹⁰See Fed. R. Evid. 804(b)(3).

¹¹Seavoy, 995 F.2d 1414.

¹²Crawford, 124 S. Ct. 1354.

¹³Id. at 1363.

¹⁴Id. at 1366-67.

¹⁵Id. at 1371, 1373.

¹⁶Id. at 1374.

¹⁷Id. at 1367.

¹⁸Id. at 1377 (Rehnquist, C.J., dissenting).

¹⁹Id. at 1367 n.6.

Wisconsin Lawyer