'Reading tea leaves,' or: applying the Crawford decision

Crawford v. Washington, 541 U.S. 36 (2004), turned 10 this year.

Crawford's interpretation of the Sixth Amendment's confrontation clause made quite a splash when first handed down. Out went the U.S. Supreme Court's prior cases that applied the clause to all out-of-court statements of witnesses unavailable at trial, but admitted them anyway if they fell within a "firmly rooted hearsay exception" or otherwise possessed "particularized guarantees of trustworthiness." Ohio v. Roberts, 448 U.S. 56, 66 (1980). In their place, Crawford narrowed the reach of the clause to "testimonial" statements, but adopted a seemingly absolute rule of inadmissibility: If the defendant had no opportunity to cross-examine the unavailable witness before trial, the witness' out-of-court statements were barred. Indeed, the bar applies even if the defendant himself caused the witness' unavailability by killing her unless he did so with the specific intent or motive to prevent her from testifying. Giles v. California, 554 U.S. 353 (2008).

But 10 years later, and notwithstanding Crawford, the California courts have held that the clause does not prevent a jury from hearing:

The out-of-court statements and written reports of a non-testifying coroner, nurse, DNA analyst, or blood-alcohol lab technician as to what they observed during their examinations, People v. Dungo, 55 Cal. 4th 608 (2012) (coroner's observations); People v. Lopez, 55 Cal. 4th 569 (2012) (lab tech's report); People v. Barba, 215 Cal. App. 4th 712 (2013) (DNA analyst's observations); People v. Holmes, 212 Cal. App. 4th 431 (2012) (same); People v. Huynh, 212 Cal. App. 4th 285 (2012) (nurse's observations);

The out-of-court statements of a non-testifying analyst as to her conclusions regarding a DNA match, People v. Steppe, 213 Cal. App. 4th 1116 (2013); and

The out-of-court statements of non-testifying gang members, police officers, or witnesses, People v. Mercado, 216 Cal. App. 4th 67 (2013) (witness); People v. Valadez, 220 Cal. App. 4th 16 (2013) (gang members, police); cf. People v. Archuleta, 2014 Cal. App. LEXIS 327 (2014) (not admitting statement made during Mirandized interrogation).

At first blush, these recent holdings appear inconsistent with Crawford's seemingly strict requirement of confrontation.

So what happened?

The short answer is that Crawford wrote a blank check that no one can agree how to fill in.

It started with Crawford's decision to identify the "core class" of "testimonial statements," but to leave the task of defining a "comprehensive" definition of "testimonial" - the clause's new trigger - "for another day." Divisiveness has plagued the court's subsequent efforts to articulate a single, consistent definition of "testimonial," causing Crawford's eventual "apple" to be smaller than its initial "core."

Crawford garnered a seven-justice majority, but the court has since splintered into three camps regarding Crawford's reach. Crawford's adherents - at this point, Justices Antonin Scalia, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor - form one camp. Crawford's skeptics - at this point, the Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer and Samuel Alito - form another. Justice Clarence Thomas has largely been his own camp since Davis v. Washington, 547 U.S. 813 (2006).

Crawford identified the "core class" of "testimonial" statements as (1) "pretrial statements" that "an objective witness" would reasonably believe "would be available for use at a later trial"; and (2) "formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." Since Crawford, the court's disagreement over the first prong - how to determine the "purpose" of a statement - has made formality the de facto decisive factor.

Davis was the first case to look to the "primary purpose" of an out-of-court statement to see whether it is "testimonial." But subsequent decisions have not agreed on which primary purpose matters. Some have found a statement to be "testimonial" if the "primary purpose" was "to establish or prove past events potentially relevant to a later criminal prosecution," Davis at 822; Michigan v. Bryant, 131 S. Ct. 1143, 1154 (2011), and have assessed that purpose by looking to what all parties to the conversation intended, id. at 1157 n.8. The plurality in Williams v. Illinois, 132 S. Ct. 2221 (2012), would instead look to whether the statement had "the primary purpose of accusing a targeted individual of engaging in criminal conduct." Id. at 2242.

Formality has consequently become the key. Although Bryant declared that "[f]ormality is not the sole touchstone of our primary purpose inquiry," 131 S. Ct. at 1160, five justices appeared to agree to the contrary just one year later in Williams. To Williams' four-justice plurality, formality is an essential ingredient of a "testimonial" statement, 132 S. Ct. at 2242; to Thomas, it is the whole enchilada, id. at 2255.

The outcomes of the court's post-Crawford cases have thus become a function of whether a statement is sufficiently formal to garner Thomas' critical fifth vote. Where the out-of-court statement is a formal "certificate of analysis" or a certified lab report, Thomas has sided with Crawford's adherents, and the court has declared the statement "testimonial." Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). But when the out-of-court statement is not sworn or certified, Thomas has sided with Crawford's skeptics and the statement has been found "non-testimonial." Williams; Bryant.

The lack of clarity and predictability has trickled down to the state courts, turning application of Crawford into what the Barba court called "an exercise in tasseomancy" (that is, reading tea leaves).

The California Supreme Court decided a trio of Crawford-related cases in 2012. One of them, People v. Rutterschmidt, 55 Cal. 4th 650 (2012), was decided on harmless error grounds and contained no Crawford analysis. But the other two decisions yielded no fewer than five different "majority" opinions: Dungo had three, and Lopez had two. In Dungo, the justices differed on what definition of "testimonial statement" to extract from the U.S. Supreme Court's 4-1-4 decision in Williams. Justice Joyce Kennard's and Justice Kathryn Werdegar's majorities used the Williams plurality's test (which required a showing of formality and a primary purpose of accusing a targeted individual). Justice Ming Chin's majority used both the plurality's test and Justice Thomas' "solemnity" test because, in Chin's view, Thomas' test could not fairly be read as a subset of the plurality's. In Lopez, Kennard's majority looked solely to the formality of the out-of-court statement, while Justice Carol Corrigan's majority also looked to the statement's primary purpose.

The lower appellate courts are in a similar state of disarray. Most courts apply both the "primary purpose" and solemnity tests. See Barba; Huynh; Mercado; Holmes; Valadez; cf. Archuleta. And at least one has read the "primary purpose" test more narrowly than the Williams plurality to find a statement to be "non-testimonial" when made as part of a police investigation of a known individual. Barba, 215 Cal. App. 4th at 738. Other courts have concluded that an out-of-court statement is not "testimonial" for the sole reason that it was not sworn, certified, or otherwise made during a formal police interrogation. See Steppe.

Either partly or wholly, these cases all turn on the same common denominator - namely, the formality and solemnity of the out-of-court statement. The less formal the statement, the more likely it is to be "non-testimonial" and hence outside the scope of the confrontation clause.

Curiously enough, the eight U.S. Supreme Court justices making up the two larger camps appear to agree that this outcome is undesirable. Kennedy's camp has commented that excluding more formal statements excludes the very statements more likely to be reliable because they are made under oath. Bullcoming, 131 S. Ct. at 2725 (dissenting). And Kagan's camp has noted that placing dispositive weight on a statement's solemnity "grants constitutional significance to minutia" and "turn[s] the Confrontation Clause into a constitutional gee-gaw - nice for show, but of little value." Williams, 132 S. Ct. at 2276 (dissenting). By shrinking the universe of out-of-court statements subject to confrontation clause scrutiny, the post-Crawford cases have also increased the universe of statements left subject only to "the vagaries of the rules of evidence" - precisely the result Crawford itself sought to end. Crawford at 61.

Crawford may also impact the "rules of evidence" it sought to displace. Five justices in Williams agreed that the out-of-court statements that experts have traditionally relied upon to form their opinions are offered for their truth. On this basis, California courts have started overturning longstanding California law viewing such statements as admissible for the non-hearsay effect they have on the expert's opinion. Valadez; Mercado; Archuleta. Treating these statements as hearsay for any purpose calls their admissibility into question under the Rules of Evidence.

It is too early to tell how this question of state evidentiary law - or Crawford itself - will play out over the next 10 years.

Tea, anyone?