Mendez on Crawford

Miguel A. Méndez of Stanford Law School has published Crawford v. Washington: A Critique, 57 Stan. L. Rev. 569 (2004). The article covers a great deal of ground. Here are just a few points that jumped out at me, with my comments.

Prof. Méndez emphasizes the difficulties of determining, under either an objective or subjective test, the declarant's anticipation of whether a statement will be used as trial evidence. I think that probably prospective use at trial should not be the key; the anticipation of prospective use in the process of criminal justice should be enough, and with respect to child witnesses the anticipation of use in some punitive process should be enough. More on this in later posts.

He also complains about the Crawford Court's leaving the situation unclearwith rspect to dying declarations. But I think virtually all courts to deal with these since Crawford have let them in, though there is still uncertainty whether the traditional hearsay exception should be followed or rather, as I believe, this is a matter that should be resolved by forfeiture doctrine; see my prior post on forfeiture anddying declarations.

Prof. Méndez contends, as I understand it, that if the defendant's negligence causes the witness to be unavailable that is enough for forfeiture. That is a plausible view, but it is bound to be controversial.

He also says, "Whether hearsay is admissible against the accused under Crawford depends initially on the forum's rules of evidence." If I understand this statement correctly, I believe it is incorrect. It seems to be based on his perception that Crawford excluded business records from the category of testimonial statements. It is true that Crawford, in its historical analysis, spoke of business records as by their nature being non-testimonial. But I believe that reference was meant to be descriptive: Business records in general are not testimonial. I do not believe that Crawford meant to state a rule that, no matter what classes of dcouments a state defined to be business records, they would be deemed non-testimonial as a matter of confrontation law. A police record of an interview with a witness is inadmissible under Crawford no matter how the state characterizes it. Prof. Méndez and I do not disagree on the proper outcome here; our difference is just that he treats the Court's reference to business records as being more significant than I do.

With respect to conspirator statements, Prof. Méndez argues that often the defense has a strong interest in cross-examining the declarant, but these statements are not covered by Crawford. True, but in my view this is not a confrontation problem -- see the post on Non-testimonial Statements -- and Crawford essentially leaves the treatment of these statements unchanged.