Another bad decision from Michigan

A really terrible opinion from my home state of Michigan (not the first in this area) is People v. Bechtol, 2004 WL 2726076 (Mich.App. Nov. 30, 2004), mercifully unpublished.

The case involved home invasion, kidnapping, and murder charges. The prosecution theory apparently was that Bechtol and another had invaded the victim’s home once in an attempt to kidnap her and then two days later came back, kidnapped her, and murdered her. The prosecution introduced evidence of a statement made by the victim, between the two incidents, to police investigating the initial home invasion. The appellate court rejected the confrontaiton argument quite summarily:

[Beginning of quotation]
Crawford held that for testimonial evidence to be admissible at trial, the Sixth Amendment demands that the declarant be unavailable and that the defendant have had "a prior opportunity for cross-examination" of the declarant. Id. at 1374. While the Court decided to "leave for another day any effort to spell out a comprehensive definition of 'testimonial[,]" ' the Court did indicate that "it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id.
The only exemplar on this list that arguably applies is the last--police interrogations. Clearly, the victim is unavailable. We conclude, however, that the victim's statement to the police officer was not the product of a structured police interrogation. Thus, the rule of Crawford does not apply.
[End of quotation]

The "logic" appears to be:

1. “Testimonial” under Crawford includes at a minimum interrogation and other entries on a given list.

2. Interrogation includes at a minimum structured questioning. [Crawford certainly doesn’t imply that structured questioning is a prerequisite for an exchange to be deemed interrogation (assuming that has any significance); it says that the statement in the case itself, in response to structured questioning, qualifies “under any conceivable definition.”]

3. This wasn't in response to structured questioning.

4. "Thus," the statement isn’t testimonial under Crawford.

The decision stands in stark contrast to the decision of the Sixth Circuit -- the circuit governing Michigan -- in Cromer, on which I've sent a post earlier and which takes the (correct, in my view) position that a statement can be testimonial even if it was not made in response to governmental interrogation and even if it was not made to government officials at all. Indeed, the contrast is sufficiently stark that one might suppose the Bechtol decision will be nullified on habeas, if not on direct appeal -- except that the Bechtol court says that if admission of the statement was a violation of the confrontation right the error was harmless. The harmless-error issue may prevent another court from getting to the merits of this very bad and illogical ruling.