Thursday, December 09, 2004

Introduction -- and an interesting development from the Supreme Court

Welcome to The Confrontation Blog. There have been so many developments related to Crawford v. Washington, 541 U.S. 36 (2004), and I am so intensely interested in the subject matter, that I have decided to start this blog in hopes of facilitating understanding and communication on the topic. I will make postings as often as I am able and as devlopments warrant. I will not attempt to go back through all of the important developments in the nine months since the Crawford decision, but as time allows I will add postings on some of them.

As a starter, note that on Monday, in Siler v. Ohio, 2004 WL 2339821, the Supreme Court granted certiorari, vacated, and remanded the case to the Court of Appeals of Ohio, Ashland County, for reconsideration in light of Crawford. The chronology is interesting and potentially significant here. The Court of Appeals issued its decision, 2003 WL 22429053, in OCtober 2003. The Ohio Supreme Court denied review on March 24, with one dissent on the hearsay-confrontation issue; presumably Crawford was not presented to that court. There was then a petition for reconsideration -- presumably in light of Crawford, which had been decided on March 8 -- and this was denied in May. It thus appears that the Ohio Supreme Court believed that the case did not warrant further consideration in light of Crawford -- and the Supreme Court of the United States has decided that yes it does.

The case makes for unpleasant reading. Siler is accused of murdering his wife by hanging. Crucial evidence against him was the report of statements made to a police officer by the couple's three-year-old son, after extended and sometimes leading questioning, to the effect that he had seen his father put a rope around his mother's neck. The child did not tesitfy at trial. The court of appeals concluded that the statement was admissible under the excited utterance exception to the hearsay rule, notwithstanding the passage of several hours. Under Crawford, that conclusion, however sound or unsound as a matter of evidence law, has no significance. The question is whether the statement was testimonial; if it was, there is clearly a confrontaiton violation. Had the statement been made by an adult in similar circumstances, I believe it would certainly have been testimonial. The only significant issue, therefore, is whether a different result is called for because the statement was made by a very young child. That is an interesting and to my mind difficult question, but so far the post-Crawford courts seem to be pretty much in accord that the age of a child declarant should not be taken into account in determining whether the statement is testimonial; essentially, they take a "reasonable adult" perspective. In that view, there is a clear violation.


Steven Yermish said...

Professor Friedman:
A colleague here at the Public Defender's Office in Miami alerted me to your site. I am very excited about it, since I am our office's resident "Crawford Junkie". I look forward to posting and reading posts on this most interesting of cases. Thank You.
Steven Yermish

Richard D. Friedman said...

Thanks so much for the encouragement! I welcome all comments.


Tim Campen said...

If the statement was spontaneous, then it is difficult to imagine how it could be testimonial under any of the proposed definitions. By definition, spontaneous statements are made under circumstances where the declarant could not contemplate the statement being used as evidence later at trial. This is how California, Indiana, Maine, and host of other states see it.