Crawford v. Washington: A critique

Stanford Law Review

Volumn 57, Issue 2, 2004, Pages 569-610

  Méndez, Miguel A ^a  

^a STANFORD UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33646010920     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (207)

1. MIGUEL A. MÉNDEZ, EVIDENCE: THE CALIFORNIA CODE AND THE FEDERAL RULES - A PROBLEM APPROACH §§ 1.01-1.02 (3d ed. 2004).
2. Id.
3. See, e.g., CAL. EVID. CODE § 711 (West 1995).
4. 380 U.S. 400, 403 (1965).
5. See infra text accompanying note 22.
6. 124 S. Ct. 1354 (2004).
7. See infra text accompanying notes 47-48 and 51-53.
8. See infra text accompanying notes 51-53.
9. See infra text accompanying notes 55-58.
10. See In re Winship, 397 U.S. 358, 364 (1970).
11. FED. R. EVID. 801(c).
12. One, of course, can acquire information through senses other than sight or hearing. One can also perceive by touching, smelling, and tasting. The California Evidence Code, for example, recognizes that all five senses are involved in the acquisition of knowledge. See, e.g., CAL. EVID. CODE § 170 (West 1995).
13. See FED. R. EVID. art. VIII advisory committee's note.
14. Id.
15. Id.
16. Id.
17. See id.
18. When a witness refuses to submit to cross-examination, the conventional remedy is for the trial judge to strike the testimony the witness gave on direct examination. Post v. Marin County Superior Court, 95 Cal. Rptr. 2d 620, 627-28 (Ct. App. 2000).
19. 399 U.S. 149, 157 (1970). Consider also the following: [T]he Clause envisions "a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." Ohio v. Roberts, 448 U.S. 56, 63-64 (1980) (quoting Mattox v. United States, 156 U.S. 237, 242-43 (1895)).
20. Green, 399 U.S. at 155-56.
21. Id. (footnotes omitted).
22. Roberts, 448 U.S. at 66.
23. Idaho v. Wright, 497 U.S. 805, 817 (1990).
24. Green, 399 U.S. at 164.
25. Id. at 165.
26. Roberts, 448 U.S. 56.
27. Id. at 65.
28. Id. at 66 (footnotes omitted).
29. Id. That was the case in Roberts, where the evidence fell within the former testimony exception to the hearsay rule.
30. 475 U.S. 387 (1986).
31. FED. R. EVID. 801(d)(2)(E).
32. Inadi, 475 U.S. at 394.
33. Id. at 395.
34. Id. at 396 (quoting Dutton v. Evans, 400 U.S. 74, 89 (1970)).
35. 502 U.S. 346, 354 (1992).
36. Id. at 356.
37. Id. at 355-56.
38. 497 U.S. 805 (1990).
39. Id. at 811-12.
40. Id. at 818.
41. Id. at 816.
42. Id. at 819.
43. Id. at 822.
44. 124 S. Ct. 1354 (2004).
45. Id. at 1358.
46. Id. Under the Washington rules of evidence, the wife could not testify without Crawford's consent. He refused to consent to her testifying. Id. at 1357.
47. Id. at 1369-72.
48. Indeed, to the Court it was immaterial that the Washington Supreme Court had found that the use of the wife's statement satisfied the Roberts and Wright tests for admitting hearsay against a defendant under a novel hearsay exception. Id. at 1373.
49. Id. at 1369-70.
50. Id. at 1374.
51. Id. at 1369 n.9.
52. Id.
53. Id. at 1374.
54. Id. at 1369 n.9.
55. Id. at 1363-64.
56. Id. at 1374.
57. Id. at 1367 n.7.
58. Id. at 1367.
59. White v. Illinois, 502 U.S. 346, 349-51 (1992).
60. Id. at 356 & n.8.
61. 124 S. Ct. 1354, 1368 n.8 (2004).
62. White, 502 U.S. at 349.
63. See Crawford, 124 S. Ct. at 1368 n.8.
64. FED. R. EVID. 803(3).
65. CAL. EVID. CODE § 1253 (West Supp. 2004).
66. See, e.g., Guam v. Ignacio, 10 F.3d 608, 612 (9th Cir. 1993) (upholding the use of a child's statement to a doctor identifying the child's assailant); People v. Brodit, 74 Cal. Rptr. 2d 154, 165 (Ct. App. 1998) (upholding the use of a child's statement to a nurse identifying the accused as the child's assailant).
67. 391 U.S. 123 (1968).
68. Id. at 126. No Bruton error is committed, however, where the confessing codefendant takes the stand and testifies favorably to the accused; in these circumstances, the use of the codefendant's confession does not deny the accused his confrontation rights. Nelson v. O'Neil, 402 U.S. 622, 629-30 (1971). In addition, no Bruton error is committed where the nontestifying codefendant's confession or admissions do not implicate the defendant in the offenses charged. People v. Olguin, 37 Cal. Rptr. 2d 596, 605 (Ct. App. 1994). But where Bruton error is committed, it is immaterial that the jury was instructed to consider the confession only against the confessing defendant. Jurors cannot be expected to abide by such an instruction. Bruton, 391 U.S. at 135-36.
69. Richardson v. Marsh, 481 U.S. 200, 211 (1987). But "[r]edactions that simply replace a name with an obvious blank space or a word such as 'deleted' or a symbol or other similarly obvious indications of alteration . . . leave statements that, considered as a class, so closely resemble Bruton's unredacted statements that, in our view, the law must require the same result." Gray v. Maryland, 523 U.S. 185, 192 (1998).
70. Lee v. Illinois, 476 U.S. 530, 547 (1986) (holding that Bruton error was committed when a trial judge relied on a nontestifying codefendant's confession in finding another codefendant guilty).
71. See, e.g., Rogers v. McMackin, 884 F.2d 252, 256-57 (6th Cir. 1989), cert. denied, 493 U.S. 1061 (1990); Cockrell v. Oberhauser, 413 F.2d 256, 258 (9th Cir. 1969).
72. People v. Walkkein, 18 Cal. Rptr. 2d 383, 387 (Ct. App. 1993).
73. Id.
74. People v. Harris, 767 P.2d 619, 632-37 (Cal. 1989).
75. Crawford v. Washington, 124 S. Ct. 1354, 1374 (2004).
76. See, e.g., FED. R. EVID. 804(a)(1); CAL. EVID. CODE § 240(a)(1) (West 1995).
77. 391 U.S. 123, 135-36 (1968).
78. 527 U.S. 116 (1999). In Lee v. Illinois, 476 U.S. 530 (1986), the Court declined to consider whether Bruton error could be obviated if the nontestifying codefendant's confession were received, not as an admission, but as a reliable declaration against interest. Id. at 544 n.5.
79. Lilly, 527 U.S. at 134.
80. Id. at 136.
81. 68 Cal. Rptr. 2d 61 (Ct. App. 1997).
82. Id. at 77.
83. Id. at 81.
84. Crawford v. Washington, 124 S. Ct. 1354, 1371 (2004).
85. Id.
86. 512 U.S. 594, 599 (1994).
87. Id.
88. 541 P.2d 296, 310 (Cal. 1975), cert. denied, 414 U.S. 926 (1976).
89. See, e.g., People v. Cervantes, 12 Cal. Rptr. 3d 774, 783 (Ct. App. 2004), where the court approved the use against two defendants of a declaration against interest which the court held did not qualify as a testimonial statement. In finding that the declaration was reliable under the Greenberger standards, the appellate court failed to consider whether the declaration was inadmissible as a statutory matter under Leach even though the defendants raised that ground. Id. at 781.
90. See, e.g., People v. Wilson, 21 Cal. Rptr. 2d 420, 434 (Ct. App. 1993). In Wilson, the accused was prosecuted, among other crimes, for using a gun in an assault. Two detectives testified that the accused's wife told them that the accused had asked her to conceal the gun he used in the assault. The wife was unavailable to testify. Because her statements to the detectives exposed her to the risk of prosecution as an accessory after the fact, her statements were admitted under California's hearsay exception for declarations against penal interest. The portion in which she related her husband's admission that he had used the gun in the assault was admitted under the hearsay exception for party admissions. Under the California Evidence Code, hearsay within hearsay may be admitted if each hearsay declaration meets the requirements of a hearsay exception. See CAL. EVID. CODE § 1201 (West 1995).
91. Crawford v. Washington, 124 S. Ct. 1354, 1374 (2004).
92. Id.
93. See FED. R. EVID. 801, 803-04. In counting the exceptions, I am ignoring the Rules' distinction between exceptions and exemptions.
94. FED. R. EVID. 807.
95. See JACK B. WEINSTEIN ET AL., EVIDENCE: RULES, STATUTE AND CASE SUPPLEMENT iii (2002).
96. See, e.g., CAL. EVID. CODE §§ 1200-1380 (West 1995).
97. 124 S. Ct. at 1370.
98. Professor Richard Friedman, who was cited favorably by the Court in Crawford, concedes this difficulty but nonetheless believes that the declarant's motivation should count in determining whether a statement is testimonial and urges the application of an objective test. See Richard D. Friedman, 'Face to Face': Rediscovering the Right to Confront Prosecution Witnesses, 8 INT'L J. EVIDENCE 1, 21 (2004). He also offers rules of thumb. "A statement made knowingly to the authorities that describes criminal activity is almost always testimonial. A statement made by a person claiming to be the victim of a crime and describing the crime is usually testimonial, whether made directly to the authorities or not." Id. The Second District of the California Court of Appeal agrees with Friedman. A statement qualifies as testimonial if the judge determines that the declarant knew or should have known that the statement would be used at a trial. People v. Cervantes, 12 Cal. Rptr. 3d 774, 782-83 (Ct. App. 2004). Cervantes upheld the use of a declaration against interest implicating the declarant as well as the defendants on trial. Because the declarant made the statement to a medical assistant and not an investigating police officer, the court found it necessary to take the declarant's motivation into account in determining whether the declaration qualified as a testimonial statement. Id. In support of the use of the objective test, the court cited that portion of Crawford in which the U.S. Supreme Court quoted from an amicus brief in giving examples of "[v]arious formulations" of testimonial statements. Id. The quote, taken from the brief filed by the National Association of Criminal Defense Lawyers, would count as testimonial "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Crawford, 124 S. Ct. at 1364.
99. Crawford, 124 S. Ct. at 1368 n.6.
100. Mattox v. United States, 146 U.S. 140, 151 (1892).
101. Regina v. Osman, 15 Cox's Crim. L. Cas. 1, 3 (Chester Assizes 1881).
102. Under the Federal Rules, the declaration can be offered only in homicide prosecutions. FED. R. EVID. 804(b)(2). Under the California Evidence Code, the declaration is admissible also in wrongful death cases. CAL. EVID. CODE § 1242 law revision commission comment (West 1995). In People v. Jiles, 18 Cal. Rptr. 3d 790 (Ct. App. 2004), the court held that even if a dying declaration is testimonial - a question the court declined to answer - its use against the accused does not offend the Sixth Amendment because, as the U.S. Supreme Court noted in Crawford, by killing the declarant the accused forfeits on equitable grounds any confrontation claims. Id. at 795. For a discussion of the Supreme Court's forfeiture analysis, see infra text accompanying note 109.
103. Crawford, 124 S. Ct. at 1355.
104. 390 U.S. 719 (1968).
105. Id. at 724-25.
106. 124 S. Ct. at 1374.
107. The Court expressed "no opinion" on whether the Washington Supreme Court correctly rejected the state's argument that Crawford waived his confrontation rights by invoking the marital privilege. Id. at 1359 n.1.
108. 178 U.S. 458, 474 (1900).
109. 124 S. Ct. at 1370.
110. Reynolds v. United States, 98 U.S. 145, 158-59 (1879).
111. Crawford, 124 S. Ct. at 1369 n.9.
112. Id. at 1374.
113. FED. R. EVID. 801(d)(1); CAL. EVID. CODE § 1291(a)(2) (West 1995).
114. See People v. Fry, 92 P.3d 970, 977 (Colo. 2004).
115. Id.
116. Id.
117. In Pointer v. Texas, 380 U.S. 400 (1965), the Court held that only an opportunity to cross-examine at the prior hearing is required where the defendant is represented by counsel at a full-fledged preliminary hearing. Id. at 407.
118. Crawford, 124 S. Ct. at 1369 n.9.
119. 399 U.S. 149 (1970).
120. 484 U.S. 554 (1988).
121. 14 Cal. Rptr. 3d 419, 431 (Ct. App. 2004), review granted and opinion superseded by People v. Warner, 97 P.3d 811 (Cal. 2004). Under Rule 977 of the California Rules of Court, an opinion that has been superseded may not be cited as precedent. Warner is cited in this Essay only to illustrate the difficulties that can be encountered in defining the adequacy of cross-examination.
122. Green, 399 U.S. at 164.
123. Getting witnesses to concede that they concocted the entire episode is a highly improbable goal.
124. 484 U.S. 554 (1988).
125. Id. at 559.
126. 381 F.3d 869 (9th Cir. 2004).
127. Id. at 870.
128. See FED. R. EVID. 801(d)(1)(A).
129. Wilmore, 381 F.3d at 873.
130. Id. at 871.
131. Id. at 873.
132. In the Ninth Circuit, the issue would not have arisen because the remedy for a witness's assertion of the Fifth Amendment on cross-examination as to material matters is striking the witness's direct testimony. Id. Presumably, the motion to strike would also include extrajudicial statements by the witness offered by the prosecution for the truth of the matter asserted.
133. Crawford v. Washington, 124 S. Ct. 1354, 1371 (2004).
134. Id. at 1372.
135. Id. at 1367.
136. MÉNDEZ, supra note 1, § 10.07.
137. Johnson v. Lutz, 170 N.E. 517 (N. Y. 1930).
138. MÉNDEZ, supra note 1, § 10.07.
139. Id.
140. Id. § 12.03.
141. CAL. PENAL CODE §§ 1191, 1200 (West 2004); see also People v. Ibanez, 90 Cal. Rptr. 2d 536, 540 (Ct. App. 1999) ("In a criminal case, judgment is rendered when the trial court orally pronounces sentence.").
142. ME"NDEZ, supra note 1, § 12.03.
143. CAL. EVID. CODE § 452.5 (West Supp. 2004); People v. Duran, 119 Cal. Rptr. 2d 272, 282 (Ct. App. 2002). Duran's construction of section 452.5 is inconsistent with a longer-established provision of the Evidence Code exempting from the hearsay rule only those judgments of convictions of felony-grade crimes that are offered in a civil case. See CAL. EVID. CODE § 1300 (West 1995).
144. Kirby v. United States, 174 U.S. 47, 61 (1899).
145. 560 F.2d 45 (2d Cir. 1977).
146. Id. at 67-68. Under Rule 803(8) of the Federal Rules of Evidence, observations by police officers and other law enforcement personnel may not be offered in records qualifying as official records.
147. Id. at 78.
148. Id. at 80.
149. Id. at 84. The Second Circuit has since retreated somewhat from this position. In United States v. Yakobov, 712 F.2d 20 (2d Cir. 1983), it held that Oates did not preclude the government from offering a record to prove the absence of an entry under Rule 803(10) of the Federal Rules of Evidence, even though the record would be inadmissible as an official record. Id. at 25-27.
150. United States v. Baker, 855 F.2d 1353 (8th Cir. 1988), cert. denied, 490 U.S. 1069 (1989). The U.S. District Court for the Central District of California has approved the admission of a chemist's report against the accused on the ground that the California hearsay exception for official records is a firmly rooted exception. Lacy v. Lewis, 123 F. Supp. 2d 533, 553 (C.D. Cal. 2000).
151. MÉNDEZ, supra note 1, § 16.06.
152. Crawford v. Washington, 124 S. Ct. 1354, 1367 (2004).
153. MÉNDEZ, supra note 1, § 7.04.
154. See, e.g., FED. R. EVID. 801(d)(2)(D); CAL. EVID. CODE § 1223 (West 1995).
155. United States v. Inadi, 475 U.S. 387, 394 (1986).
156. Id. at 395-96.
157. Professor Richard Friedman, who stresses the state of mind of the declarant in defining whether a statement is testimonial, would exempt coconspirators' declarations from the definition because they are intended by the declarant to further the criminal enterprise. See Friedman, supra note 98, at 26. Admittedly, coconspirators are unlikely to make the statements with criminal litigation in mind. In Crawford, however, the Court seems more interested in whether the person taking the statement is the functional equivalent of a civil law magistrate. To the extent that mental states are relevant in defining testimonial statements, it puts a premium on that person's state of mind.
158. MÉNDEZ, supra note 1, § 7.04.
159. Id. § 17.03.
160. Id. § 17.04.
161. Id. § 17.02.
162. FED. R. EVID. 104(b) advisory committee's note.
163. See Bourjaily v. United States, 483 U.S. 171, 175 (1986). The Advisory Committee's Note to Federal Rule of Evidence 801(d)(2)(D) has been revised to reflect Bourjaily's standard of proof.
164. FED. R. EVID. 104(a).
165. Id. 801(d)(2).
166. Lilly v. Virginia, 527 U.S. 116, 125 (1999).
167. See United States v. Inadi, 475 U.S. 387, 395-96 (1986).
168. RICHARD O. LEMPERT & STEPHEN A. SALTZBURG, A MODERN APPROACH TO EVIDENCE 551-52 (2d ed. 1982).
169. The court refers to these declarations as ́accomplice confessions.́ Crawford v. Washington, 124 S. Ct. 1354, 1371 (2004).
170. People v. Greenberger, 68 Cal. Rptr. 2d 61, 81 (Ct. App. 1997).
171. MCCORMICK ON EVIDENCE § 278 (Edward W. Cleary ed., 3d ed. 1984).
172. As noted above, in giving examples of ́[v]arious formulationś of testimonial statements, the Court in Crawford quoted from a brief filed by the National Association of Criminal Defense Lawyers defining as testimonial statements those ́made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.́ Crawford, 124 S. Ct. at 1364. Thus, the Court appears to be open to the possibility of examining the declarant's motivation in determining whether a statement is testimonial.
173. Lilly v. Virginia, 527 U.S. 116, 134 (1999).
174. Crawford, 124 S. Ct. at 1371.
175. Id. at 1373.
176. Id. at 1372.
177. Id. at 1370.
178. MÉNDEZ, supra note 1, § 9.12.
179. Id. §§ 9.09, 9.12.
180. 103 Cal. Rptr. 2d 492 (Ct. App. 2001).
181. Id. at 504. Other statements by Nicole describing her then feelings toward O.J. (e.g., that she no longer loved him) were admitted for the truth of the matter stated under the hearsay exception for statements regarding then-existing feelings. Id. Their relevance was the same, however.
182. Id.
183. CAL. EVID. CODE § 1370 (West Supp. 2004).
184. Statements made more than five years before the filing of the action or proceeding in which they are offered are inadmissible. Id. § 1370(a)(3).
185. Id. § 1370(a).
186. Id. § 1370(b).
187. In People v. Cage, 15 Cal. Rptr. 3d 846 (Ct. App. 2004), review granted, 99 P.3d 2 (Cal. 2004), the prosecution relied on section 1370 in offering a statement the victim made to an investigating police officer while the victim was in a hospital. According to the officer, the victim told him that the defendant "grabbed a piece of glass and came over and cut him." Id. at 849. The defendant was prosecuted for assaulting the victim with a deadly weapon, but the victim did not testify at the trial. The California Court of Appeal held that the use of the victim's statement did not violate the accused's Confrontation Clause rights because the statement did not qualify as a testimonial statement: There was no particular formality to the proceedings. Deputy Mullin was still trying to determine whether a crime had been committed and, if so, by whom. No suspect was under arrest; no trial was contemplated. Deputy Mullin did not summon [the victim] to a courtroom or a station house; he sought him out, at a neutral, public place. There was no "structured questioning," just an open-ended invitation for [the victim] to tell his story. The interview was not recorded. There is no evidence that Deputy Mullin even so much as recorded it later in a police report. Police questioning is not necessarily police interrogation. When people refer to a "police interrogation," however colloquially, they have in mind something far more formal and focused. Id. at 856-57. Of course, if what counts in determining whether a victim's statement is testimonial is the officer's state of mind, then what "people" consider to be a "police interrogation" would be largely, if not completely, immaterial. On the other hand, the formality or informality surrounding the interrogation would, of course, be circumstantial evidence of the role the officer thought he or she was discharging in interrogating a victim. So would be the stage of the proceeding - whether suspicion had or had not begun to focus on a particular suspect. But what the officer thought he or she was doing in obtaining the statement would still be the most probative evidence of whether the officer had the requisite state of mind. Deputy Mullin, however, was not questioned about his thoughts, since the trial took place before Crawford was handed down. Cage should be compared with People v. Adams, 16 Cal. Rptr. 3d 237 (Ct. App. 2004), review granted, 99 P.3d 2 (Cal. 2004). Adams also involved a hospital interview of the victim by a police officer. Because the victim was unavailable to testify, her statement to the officer was received under section 1370 of the California Evidence Code. In her statement, the victim identified the defendant as the person who had assaulted her. The reviewing court reversed the assault conviction, holding that the officer's interview of the victim amounted to a police interrogation that qualified as testimonial under Crawford. Id. at 243-44. Unlike the Cage court, the Adams court did not engage in a nuanced analysis. As in Cage, no suspect had been arrested, no trial date had been set, and the interview took place in a hospital and not at the station house. Nonetheless, the court had no difficulty in finding that the interview was testimonial, since it was conducted by a police officer in the course of investigating a potentially criminal matter. To the Adams court, then, in such circumstances there appears to be no need to seek direct evidence of the officer's state of mind in taking a witness's statement. Indeed, the court disposed of the appeal without explicitly considering the officer's state of mind in conducting the witness interview. Id. Under Rule 977 of the California Rules of Court, neither Cage nor Adams may be cited as precedent. The cases are cited in this Essay only to illustrate the difficulties encountered in determining the pertinent state of mind when ruling whether the hearsay offered against the accused at a trial qualifies as a testimonial statement.
188. In People v. Price, 15 Cal. Rptr. 3d 229 (Ct. App. 2004), the California Court of Appeal held that the use of section 1370 of the California Evidence Code against criminal defendants does not violate the Confrontation Clause where the defendant had been given an opportunity to cross-examine the declarant at the preliminary hearing about the out-of-court statement offered at the trial. Id. at 239-40. In reaching this conclusion, the court assumed, without deciding, that the statement offered under section 1370 constituted a testimonial statement under Crawford. Id.
189. See, e.g., CAL. PENAL CODE §§ 11164-11174.4 (West 2000 & Supp. 2004).
190. In Cage, the prosecution relied on section 1370 in offering a statement the victim made to a doctor in which the victim stated that he had been "cut" by his mother, who was on trial for assaulting the victim with a deadly weapon. The court held that the doctor's testimony relating the victim's statement did not constitute a testimonial statement under Crawford because "[n]o reasonable person in [the victim's] shoes would have expected his statements to Dr. Russell to be used prosecutorially, at defendant's trial. This is true even if he thought the doctor might relay his statement to the police." 15 Cal. Rptr. 3d at 855. It is unclear, however, whether the court correctly interpreted this aspect of Crawford. With regard to the declarant's state of mind, Crawford leaves unanswered whether the declarant's belief that he or she gave the statement for possible use in a future prosecution should be controlling and the objective test ("statements . . . made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial") applied only when the evidence regarding the declarant's purpose is ambiguous. In determining whether the declarant gave the statement for testimonial purposes, the proper question under Crawford may be whether the declarant knew or should have known that the statement might be used in a future prosecution. For the Rule 977 implications of the grant of review of Cage by the California Supreme Court, see supra note 187.
191. 497 U.S. 805 (1990).
192. Id. at 819.
193. Id. at 822.
194. In People v. Hernandez, 78 Cal. Rptr. 2d 909 (Ct. App. 1998), the trial judge found that a statement met the particularized guarantees of trustworthiness mandated by Wright. In making that finding, the judge considered some of the circumstances surrounding the making of the statement. At the time the victim made her statement to the police, she was in a long-term relationship with the accused (and, hence, had no "motive" to fabricate her accusations of violence against the accused) and was upset and crying (and therefore was seeking help rather than trying to "connive" against the accused). Id. at 913. Accordingly, the reviewing court rejected the accused's claim that the use of the victim's statement under section 1370 violated his confrontation rights. Id. However, in contravention of Wright both the trial judge and the reviewing court appear to have considered other evidence offered at the trial to corroborate the reliability of the victim's statement. This evidence included a 911 call made by the victim and admissions made by the accused. See id. The California Supreme Court granted review and remanded the case to the Court of Appeal with instructions to vacate its decision and reconsider the case in light of Wright. People v. Hernandez, 972 P.2d 149 (Cal. 1999). On reconsideration, the Court of Appeal acknowledged that Wright precluded the use of the other evidence to determine the statement's reliability. People v. Hernandez, 83 Cal. Rptr. 2d 747 (Ct. App. 1999). But the Court of Appeal nonetheless affirmed the conviction on the ground that the statement was sufficiently reliable to satisfy confrontation concerns even without the corroborating evidence. Id. at 752.
195. See Cage, 15 Cal. Rptr. 3d at 854-55 (holding that a victim's statement to a doctor offered under section 1370 did not qualify as a testimonial statement, but that a similar statement to a police officer made at a police station did so qualify). For the Rule 977 implications of the grant of review, see supra note 187.
196. CAL. EVID. CODE § 1360 (West Supp. 2004). Among the factors a judge should take into consideration in determining the reliability of a child's out-of-court statements are the following: (1) whether the statements were made spontaneously, (2) whether the statements are consistent, (3) whether the child's mental state at the time of the statements indicates lack of reliability, (4) whether the child's descriptions and language demonstrate knowledge of sexual matters beyond that normally expected of children of the declarant's age, and (5) whether the child had a motive to fabricate the accusations. People v. Brodit, 72 Cal. Rptr. 2d 154, 164 (Ct. App. 1998).
197. CAL. EVID. CODE § 1360. The proponent of the statement must also give notice to the adverse party far enough in advance of the proceeding as to provide the opponent with a fair opportunity to defend against the statement. In the case of a jury trial, the notice must be given before the jurors have been sworn. Id.
198. People v. Eccleston, 107 Cal. Rptr. 2d 440, 449-50 (Ct. App. 2001).
199. People v. Roberto V., 113 Cal. Rptr. 2d 804, 822-23 (Ct. App. 2001).
200. Id.
201. In People v. Sisavath, 13 Cal. Rptr. 3d 753 (Ct. App. 2004), the court held that two statements admitted under section 1360 qualified as testimonial under Crawford. Id. at 757-58. In one of the statements, the child victim described acts of abuse to one of the police officers who responded to the mother's phone call reporting possible abuse. In the other, the child described acts of abuse to an employee of a county agency established for interviewing victims of abuse. The reviewing court found that the child's statement to the officer fell within Crawford's definition of a police interrogation. Id. Furthermore, the court rejected the prosecution's contention that the statement to the agency employee was not testimonial because, among other matters, the interview was intended for a therapeutic purpose and not for a prosecutorial purpose. Instead, the court found that the pertinent question is whether an objective observer would reasonably expect the statement to be available for use in a prosecution. [The victim's] interview took place after a prosecution was initiated, was attended by the prosecutor and the prosecutor's investigator, and was conducted by a person trained in forensic interviewing. Under these circumstances, it does not matter what the government's actual intent was in setting up the interview . . . . It was eminently reasonable to expect that the interview would be available for use at trial. Id. at 758. The victim was four years old when she gave her statements. This might explain why the court was concerned solely with the "government's" state of mind in determining whether the victim's statement to the agency employee qualified as testimonial. But it is unclear from the opinion whether the court was concerned with the prosecutor's state of mind in setting up the interview, the interviewer's state of mind in conducting the interview, or both. Moreover, in determining whether the prosecutor or the employee should have known that the interview might be used at trial, the court assessed foreseeability from the perspective of "an objective observer," and not of an objective prosecutor or a specially trained child abuse interviewer.
202. CAL. EVID. CODE § 1380 (West Supp. 2004); see also CAL. PENAL CODE § 368 (West 1999) (defining the new offense).
203. CAL. EVID. CODE § 1380(a)(1). In Wright, the Court said, "To be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial." 497 U.S. 805, 822 (1990).
204. CAL. EVID. CODE § 1380(a)(3).
205. The Sixth District of the California Court of Appeal has held that section 1380 is unconstitutional when applied to a criminal defendant. See People v. Pirwani, 14 Cal. Rptr. 3d 673, 685 (Ct. App. 2004).
206. In People v. Corella, 18 Cal. Rptr. 3d 770 (Ct. App. 2004), the court held that a 911 call admitted as an excited utterance against the accused did not qualify as a testimonial statement because the caller's declarations were not made "'in response to structured police questioning,'" the kind of interrogation the court found to be at issue in Crawford. Id. at 776 (quoting Crawford, 124 S. Ct. at 1365 n.4). A 911 operator, the court found, is not conducting a police interrogation in contemplation of a future prosecution but determining the appropriate response to the caller's call for assistance. Id. The opinion, however, does not explicitly foreclose an examination of the operator's mental state when a court tries to determine whether in a given instance the 911 operator was conducting the type of structured investigation that qualifies as testimonial. Consider People v. Caudillo, 19 Cal. Rptr. 3d 574 (Ct. App. 2004), where the reviewing court focused on the caller's state of mind in finding that the use of the call at the trial did not violate the accused's confrontation rights: "The caller was simply requesting help from the police by describing what she saw without thinking about whether her statements would be used at a later trial." Id. at 590.
207. Miranda v. Arizona, 384 U.S. 436 (1966).