Prior to Crawford, Roberts provided that when a declarant of an out- of-court statement was unavailable, the statement could still be admissible if it bore adequate “indicia of reliability.”178 Reliability could be determined in two ways: (1) by proving that the statement fell within a firmly rooted hearsay exception, or (2) by proving surrounding facts that demonstrated particularized guarantees of trustworthiness.179 The
Crawford decision, however, holds that cross-examination is the
174. See Sandy Banks, When Victims Refuse to Prosecute, L.A. TIMES, Jan. 11, 2000, at E1 (quoting a Los Angeles Deputy City Attorney, Grace Kim Lee, before Crawford, as saying that domestic violence cases used to rest entirely on the victim deciding whether to file charges, provide evidence, and testify in court—thus, a reluctant witness meant no case—but that prosecutors now were going forward and prosecuting cases without the cooperation of the victim); Stephen Hunt, Wife Spares Ex-deputy an Abuse Trial, SALT LAKE TRIB., July 14, 1998, at B1 (explaining that a Utah law that allows judges to dismiss domestic violence charges at the victim’s request endangers the lives of domestic violence victims and returns the responsibility of prosecuting defendants to the victim, thereby negating years of progress in domestic violence policy). Crawford, of course, dramatically hampers the victimless prosecution techniques and no-drop policy strategy, once again making cases dependent on victim cooperation.
175. See Robbins, supra note 151, at 217–18.
176. See Robbins, supra note 151, at 215–17; Hudders, supra note 125, at 1041. 177. See King-Ries, supra note 53, at 301.
178. Ohio v. Roberts, 448 U.S. 56, 65–66 (1980). See supra Part II. 179. Roberts, 448 U.S. at 66.
constitutionally prescribed method for determining reliability.180 In effect, this means that testimonial hearsay statements that are not subject to cross- examination, no matter how trustworthy they appear, are not reliable and are barred by the Confrontation Clause.
Thus, testimonial statements relating present sense impressions181 or excited utterances,182 statements describing then-existing mental or emotional conditions,183 statements made for the purpose of medical diagnosis or treatment,184 and statements qualifying as past recollections recorded185 no longer automatically pass constitutional muster.186 Moreover, the Court in Crawford recognizes that there will be situations in which the surrounding circumstances of a testimonial out-of-court statement indicate particular guarantees of trustworthiness, but where the Confrontation Clause will prohibit admissibility of the statement due to a lack of cross-examination.187
Many results of this new rule simply seem unjust, as what was once considered very reliable hearsay is now excluded.188 The most egregious examples are those in which the defendant is on trial for murder and the out-of-court statements are the victim’s. In the sensationalized O.J. Simpson trial of the 1990s, for example, Judge Lance Ito ruled that statements made by Nicole Brown Simpson in her diary and to friends and relatives describing a history of abuse by O.J. Simpson were inadmissible hearsay.189 Although Judge Ito stated that “the relevance and probative value of such evidence is both obvious and compelling, especially those statements made just days before the homicide,” there was no hearsay 180. Crawford v. Washington, 541 U.S. 36, 68–69 (2004). Some may argue that this was in dicta and that all Crawford holds is that the Confrontation Clause procedurally requires cross-examination, regardless of whether cross-examination was conducted for the purpose of determining reliability. That debate is outside the scope of this Note.
181. FED.R.EVID. 803(1). 182. Id. 803(2). 183. Id. 803(3). 184. Id. 803(4). 185. Id. 803(5).
186. For a list of “firmly rooted” hearsay exceptions, see supra note 34. The only previously “firmly rooted” hearsay exceptions that Crawford permits without cross-examination are dying declarations, Crawford v. Washington, 541 U.S. 36, 56 n.6 (2004), and business and public records. Id. at 73, 76 (Rehnquist, C.J., concurring). See supra note 47.
187. Crawford, 541 U.S. at 61–62. 188. Id. at 61.
exception in the evidence rules permitting him to admit the statements.190 In response, and shortly after the case was decided, the California legislature enacted a new hearsay exception that permits judges to admit hearsay statements that explain the threat or infliction of physical injury upon the declarant.191 Regardless of this new rule, however, if the statements are deemed testimonial under Crawford and the prosecution cannot prove forfeiture by wrongdoing, the statements would now be barred by the Confrontation Clause because the defendant does not have an opportunity to cross-examine the declarant.192
Consider the hypothetical 911 call described in Part I, in which the only evidence that the husband was the cause of the wife’s severe injuries is her 911 call, and the woman has since disappeared. Under the Roberts
analysis, to determine the admissibility of the 911 call against the husband, the court would consider whether the wife’s statement to the 911 operator fell under a firmly rooted hearsay exception or whether the surrounding facts demonstrate particularized guarantees of trustworthiness.193 The statement likely would be admissible using the Roberts test as an excited utterance194 or a present sense impression,195 or even because the surrounding circumstances demonstrate particularized guarantees of trustworthiness.
After Crawford, however, if the wife’s statement in the 911 call was found to be testimonial,196 the statement would be inadmissible unless the defendant had an opportunity to cross-examine her.197 As the prosecution has no way of locating the wife and cross-examination is not possible, the statement would be barred.198 Given that there is no evidence besides the 911 call that directly implicates the husband as the cause of the wife’s injuries, under current law, the case would likely not even be filed, much less successfully prosecuted.
190. Ruling on Defendant’s In Limine Motion to Exclude Evidence of Domestic Discord at 5, People v. Simpson, No. BA097211 (Cal. Super. Ct. Jan. 18, 1995), 1995 WL 21768; Hudders, supra note 125, at 1052.
191. CAL.EVID.CODE § 1370 (West Supp. 2005) (effective Sept. 4, 1996). See Hudders, supra note 125, at 1067–68.
192. Crawford, 541 U.S. at 68.
193. See Ohio v. Roberts, 448 U.S. 56, 66 (1980). 194. FED.R.EVID. 803(2).
195. Id. 803(1).
196. See supra Part III.A; supra note 52. 197. Crawford, 541 U.S. at 68–69.