Another Confrontation Case at the Supremes - Williams v. Illinois

This Tuesday (6 Dec 11), the United States Supreme Court heard another Confrontation Clause case (Williams v. Illinois) dealing with forensic testing (ala Melendez-Diaz and Bullcoming).  The question presented was

Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause.

At trial, the state called a DNA expert to testify about how it matched the accused's DNA profile with DNA evidence recovered from a rape victim, but the state did not call a DNA analyst from the company that conducted the initial testing.  The defendant later claimed that his right to confrontation was violated because he was denied an opportunity to question all of the DNA analysts that tested the evidence.  The Court was hotly divided on the issue, at times debating amongst themselves. 

Robert Barnes of the Washington Post covered the case HERE.  I couldn't attend the hearing, so I'll rely on his account of the oral argument.

The ABA preview of the case, which briefs and such, is HERE.

Revisiting Michigan v. Bryant

Back in February, we alerted you to the Supreme Court decision in Michigan v. Bryant regarding testimonial v. non-testimonial statements.  I wanted to re-post on this case and take a deeper look at what has changed as a result of the Supreme Court’s opinion.

The Bryant court came up with a new test to evaluate what types of statements made to law enforcement are testimonial.  Before Bryant, Crawford basically stated that statements made during interrogations qualified as testimonial.  But, Crawford was just the tip of the iceberg.  After Crawford, the Court in Davis v. Washington specifically addressed statements made to officers to enable them to respond to an ongoing emergency.  The Court held that those statements are non-testimonial.  The problem was that the Court in Crawford and Davis failed to give us a clear test to determine what types of statements would be non-testimonial.

Finally, the Court decided Bryant, giving us a test. Under the Bryant test, courts must consider three factors:

1) The circumstances of the encounter;

2) The questions and statements of the participants; and

3) The primary purpose of the interrogation as viewed by reasonable participants at the time.

The case was consistent with Crawford.  Analyzing the facts in Crawford, we can see that a 911 call reporting an ongoing assault would still be held non-custodial under the Bryant test.  The circumstances of the encounter was that there was an ongoing emergency taking place, the questions and statements of the participants were specifically in relation to the 911 call and the primary purpose of the 911 call was to report an emergency.  The Bryant court ultimately held that if the primary purpose of the statement is not for the purpose of creating a substitute for trial testimony, then the Confrontation Clause does not apply.

For all practical purposes, Crawford seemed to give a blanket exception for all 911 calls as being non-testimonial.  By giving us a test, the Supreme Court left each statement to be evaluated on a case-by-case basis.  Could a 911 call be considered testimonial?  If evaluated under the Bryant test, and the right circumstances exist, we think it could be.  This argument could have been made even after the Crawford decision came down, but it may be easier to point the court to the Bryant test when arguing that statements made were subject to the confrontation clause – even if there is an emergency situation taking place.

Michigan v. Bryant, 131 S. Ct. 1143 (2011)
Crawford v. Washington, 541 U.S. 36 (2004)
Davis v. Washington, 547 U.S. 813 (2006)

Breaking CCA Case Regarding Crawford's Application to Sentencing

Stringer v. State, ___ S.W.3d ___ (Tex. Crim. App. 2010) Delivered April 14, 2010 (Designated for publication).

Question Presented:  Whether the Sixth Amendment Confrontation Clause and the Supreme Court holding in Crawford v. Washington were violated when the trial court in assessing punishment considered statements regarding an unadjudicated felony where those declarants were unavailable for cross examination and the Appellant had no prior opportunity to question them?

Held:

[W]hen a PSI is used in a non-capital case in which the defendant has elected to have the judge determine sentencing, Crawford does not apply. For us to conclude in Appellant’s favor would require a trial judge to hold a mini-trial for sentencing and would thwart the purpose of the PSI as a tool for the court to use in determining punishment. This holding is limited to a sentencing hearing in which the judge assesses punishment. We need not address here whether Crawford applies when a jury determines the sentence in a non-capital case.

CCA Holds: Out-of-Court Statements by Confidential Informant Violate Crawford and Confrontation Clause

In a big case for the 6th Amendment and the ever-expanding Crawford jurisprudence, the Texas Court of Criminal Appeals released its opinion in Langham v. State yesterday.

Langham v. State, NO. PD-1780-08

In Langham, the Texas Court of Criminal Appeals reversed the 11th Court of Appeals, which previously upheld the admissibility of out-of-court statements made to a detective by a confidential informant. In so doing, the 11th Court of Appeals reasoned that "[h]ere, the primary purpose behind the [out-of-court] statements of the confidential informant was not to provide testimony but to provide information to Detective Smith in order that he could obtain a search warrant." The testimony was later offered at trial through the Detective and used substantively in the State's case.

The CCA reversed, citing the 11th Court's "flawed understanding of what the Supreme Court meant" in Crawford v. Washington. Writing for the majority (6-3), Judge Price stated, "[w]e conclude that the court of appeals erred to hold that Smith's testimony recounting the statements of the out-of-court confidential informant did not violate the Confrontation Clause." "[I]t is manifest that the 'primary purpose' of Detective Smith's communication with his confidential informant was to pave the way for a potential criminal prosecution."

This case appears very fact dependant, so I'm not positive that a bright-line rule has emerged. From my point of view, however, the State is going to have an uphill battle if it wants to introduce any statements by confidential informants.

Presiding Judge Keller dissented. While she did not denounce the rule that statements from a CI would violate the CC, she would affirm this case because the substance of the statements from the CI was slight. Judges Hervey (Keller, Keasler joined) also dissented due to "reservations" regarding whether the statements of the CI were "testimonial."