United States v. Cromer -- an important case from the 6th Circuit

One of the most important post-Crawford cases is U.S. v. Cromer, 2004 WL 2711130 (6th Cir. Nov. 29, 2004). I was thinking of writing a post on it, but Andrew Fine of the Legal Aid Society in New York wrote such a good and extensive message on it to his colleagues the day after the decision came down that, with his permission, I am posting that instead. I will add a brief comment at the end.

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Andrew Fine's message

US v. Cromer, 6th Circuit, decided yesterday (11/30); 2004 WL 2711130. This is the most important post-Crawford opinion yet.

The panel unanimously accepted Prof. Friedman's definition of testimonial hearsay (any statement "made in circumstances in which a reasonable person would realize that it likely would be used in investigation and prosecution of a crime;" court quotes directly from Dial-In Testimony). It examined and squarely rejected the more restrictive definition including only "formalized statements ... made directly to the authorities," that was initially proposed by Prof. Akhil Amar, was listed as a possible test in Crawford, and has been latched onto by many post-Crawford courts. Prof. Friedman's broader standard, the court held, is "necessary to ensure that the adjudicative system does not effectively invite witnesses to testify in informal ways that avoid confrontation" (quoting directly from Prof. Friedman's Georgetown Law Journal article that was approvingly cited in Crawford). Explaining further, the court continued,

"We are unable to discern how the greater formalities identified by Professor Amar are necessary components of a testimonial statement. Indeed, the danger to a defendant might well be greater if the statement introduced at trial, without a right of confrontation, is a statement volunteered to police rather than a statement elicited through formalized police interrogation. One can imagine the temptation that someone who bears a grudge might have to volunteer to police, truthfully or not, information of the commission of a crime, especially when that person is assured he will not be subject to confrontation. Professor Friedman's concern becomes especially meaningful in such a context. If the judicial system only requires cross-examination when someone has formally served as a witness against a defendant, then witnesses and those who deal with them will have every incentive to ensure that testimony is given informally."

Needless to say, application of this test would result in many 911 calls, and nearly every on-the-scene police interview, being testimonial. The court also approvingly quoted Prof. Friedman's generalized views that a statement made knowingly to the authorities is almost always testimonial, and a statement made by a person claiming to be a crime victim and describing the crime is usually testimonial, "whether made to the authorities or not."

The factual context of the decision makes it even more useful. At issue was police testimony on direct examination, in a drug case, that their investigation had focused on "Nut," whom they learned was the defendant, and further testimony on redirect that the source of their investigation had been a nontestifying informant who had provided a description matching defendant. This testimony was not objected to, and, in fact, the contents of the informant's description were aggressively explored by the defense on cross-examination of the officer. On appeal, the prosecution argued that (1) the informant's statements to the officer were not testimonial; (2) even assuming that the statements were testimonial, (a) they were not being offered for their truth, but to explain why the investigation had been undertaken, and (b) the defense cross opened the door to the statements testified to on redirect. The Sixth Circuit rejected all claims.

The court ruled that "statements of a confidential informant are testimonial" under Prof. Friedman's standard"Tips provided by confidential informants are knowingly and purposely made to authorities, accuse someone of a crime, and often are used against the accused at trial. The very fact that the informant is confidential * i.e., that not even his identity is disclosed to the defendant * heightens the dangers involved in allowing a declarant to bear testimony without confrontation. The allowance of anonymous accusations of crime without any opportunity for cross-examination would make a mockery of the Confrontation Clause."

Regarding the government's background claim, the court ruled that the direct testimony "implicated Cromer in a way that went 'to the very heart of the prosecutor's case,'" and did not convey any useful information regarding the police investigation; moreover, "there was no dispute as to the subjects of the government's investigation or the reason those subjects were believed to be involved." Therefore, "the purpose of this testimony was to establish the truth of the matter assertedto prove that Cromer was, indeed, involved in the illegal activity." Similarly, the testimony on redirect providing the informant's description had no usefulness other than to establish its truth"that Cromer, who met the description, had participated in the illegal activity."

The court acknowledged that "[a]s a matter of modern evidence law, the district court may well have been correct in admitting [the] redirect testimony about the description since Cromer, on cross-examination, had opened the door to the subject by asking about that description." Nevertheless, the court concluded, the door-opening rationale is trumped by the Confrontation Clause""The pertinent question ... is not whether the [informant's] statements were properly admitted pursuant to 'the law of Evidence for the time being' [quoting from Crawford]. Rather, the relevant inquiry is whether Cromer's right to confront the witnesses against him was violated by [the cop's] redirect testimony. If there is one theme to emerge from Crawford, it is that the Confrontation Clause confers a powerful and fundamental right that is no longer subsumed by the evidentiary rules governing the admission of hearsay statements. Thus, the mere fact that Cromer may have opened the door ... is not sufficient to erase the violation." Only forfeiture by misconduct * defendant improperly procuring the unavailability of the witness * can waive a Crawford claim, the court said. "A foolish strategic decision does not rise to the level of such misconduct and so will not cause defendant to forfeit his rights under the Confrontation Clause."

Obviously, the door-opening portion of this opinion is radical and unlikely to be accepted widely. It should be taken into account, however, when evaluating whether to brief a Crawford claim with a door-opening problem. The opinion's conclusions regarding police background are persuasive and extremely useful, in this context and others, though there is also very good 2d Circuit (pre-Crawford) caselaw on this subject.
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Comment by Friedman

I am, of course, delighted on the whole by this opinion, and I hope it gets widespread attention among lawyers litigating Crawford issues; indeed, that hope gave me the idea of this blog. I do want to disassociate myself from one point, however. I have not thought seriously about the door-opening issue in the case. But to the extent that the court relies on me for authority on this issue, I believe the reliance is misplaced. It may be that forfeiture of the confrontation right occurs only when the accused's wrongdoing prevents the witness from testifying subject to cross-examination, but I do not believe I have ever said, and I certainly do not believe, that forfeiture is the only way that the accused may give up the confrontation right. The accused may waive it, for example. It seems to me at least plausible that there are circumstances in which a litigation choice by the accused might create such a misleading impression if the prior testimonial statement were not introduced that the accused should be deemed, consistent with the Confrontation Clause, to have opened the door to admitting the statement. Whether that was so in Cromer itself I have no idea.