First, the bad news. In United States v. Luciano, 2005 WL 1594576 (1st Cir. Jul. 8, 2005), the First Circuit -- which sits in Boston, for goodness sake -- appears to have adopted an argument that I initially had hoped merely reflected inability to read in Columbus, Ohio, see State v. Banks, 2005 WL 2809070 (Ohio App. 10th Dist. 2004) ("The holding in Crawford only applies to statements . . . that are not subject to common-law exceptions to the hearsay rule, such as excited utterance or present sense impression.").
[T]he initial statement that Camacho made to Officer Thornton when Camacho flagged down the Officer's cruiser immediately following the assault does not constitute ‘testimonial hearsay’ as used in Crawford. Instead, Camacho's statement appears to be an excited utterance that would qualify for admission at trial under as [sic] a hearsay exception.The implication certainly seems to be that if a statement fits within a hearsay exception then it is not testimonial. That is about as blatant a misreading, and a misunderstanding, of Crawford as can be. Or maybe it is simply a denial of Crawford, a longing for the good-old days of Roberts. No need for further comment.
Now for much better news. I recently reported on the Sixth Circuit decision in United States v. Arnold, 410 F.3d 895 (6th Cir. June 21, 2005), which I think adopted generally sound Confrontation Clause analysis. The 10th Circuit has now joined the basic approach adopted by the Sixth. The case, United States v. Summers, 2005 WL 1694031 (10th Cir. Jul. 21, 2005), may be one for the textbooks, because it presents a classic hearsay issue as well as a confrontation issue. Thomas and three others were arrested after a bank robbery. At Thomas's trial, one of the officers was allowed to testify, over Thomas's objection, that one loquacious arrestee, Mohammed, said, "How did you guys find us so fast?" The opinion of the unanimous 10th Circuit panel contains an interesting discussion of whether this question amounts to an assertion. The court concluded that the question “clearly contained an inculpatory assertion.” Certainly the court is right that the utterance at least contained the implicit premise “We’ve done something for which you would be interested in finding us.” I have taken the view that, with respect to the rule against hearsay, the fact that a proposition is an implicit premise of an utterance is not enough to make the utterance an assertion of that proposition. Thus, if “Look at my daughter move!” in context is “Look at my daughter [who you and I both know is the girl with the ball, so I don’t have to refer to her that way, but can simply use the shorthand, ‘my daughter’] move!” then it seems not to be an assertion of the proposition that the girl is the speaker’s daughter for hearsay purposes. On the other hand, if it is “The girl with the ball is my daughter. Look at her move!” then it is such an assertion. The Elements of Evidence 216-17 (3d ed. 2004). It seems to me that the “intended . . . as an assertion” standard of Fed. R. Evid. 801(a) demands a distinction of this sort. But arguably that should not be the rule under the Confrontation Clause. Arguably, even if Mohammed was saying, “Given that premise, which we both understand so I don’t have to communicate it to you, I do wonder how you found us so quickly,” his utterance is of concern under the Confrontation Clause. Interesting problem, I think, but I won’t comment on it any further now; I’ll be interested in readers’ comments.
Of broader significance, the 10th Circuit adopts the same approach that the Sixth Circuit did, first in United States v. Cromer, 389 F.3d 662 (6th Cir. 2004) [on which Andy Fine and I commented when I started this blog], and more recently in Arnold. After rejecting a narrower approach propsoed by Prof. Amar as emphasizing form over substance, the court said:
[W]e believe an objective test focusing on the reasonable expectations of the declarant under the circumstances of the case more adequately safeguards the accused's confrontation right and more closely reflects the concerns underpinning the Sixth Amendment.And it included a citation, for which I am grateful, to my article, Confrontation: The Search for Basic Principles, 86 Geo. L.J. 1011, 1040-43 (1998).
Turning to the facts of the case, the court held that Mohammed’s statement was “loosely akin to a confession,” and that under the circumstances, “a reasonable person in Mohammed's position would objectively foresee that an inculpatory statement implicating himself and others might be used in a subsequent investigation or prosecution.” And for good measure, the court explicitly and properly swatted aside the idea that the Confrontation Clause analysis would be affected by the fact that the statement qualified under an exception to the hearsay rule; the ability to read seems to be secure in the mountain states. All of which did Mr. Thomas no good, because the court concluded that the error was harmless. Nonethelss, the decision clearly puts the 10th Circuit among those courts that understand the transformation wrought by Crawford. Until the Supreme Court intervenes, those courts seem likely to remain in the minority.