Sunday, October 21, 2007

Confronting the Confrontation Clause

State v. Fields (HSC Oct. 11, 2007)

Background. Reginald Fields lived with his girlfriend, Staggs, on Kauai. One night their neighbor and landlord heard an argument between Fields, his friend, Richards, and Staggs. The landlord also heard slapping sounds and a hard thud. The landlord testified, without objection, that she heard someone yell, "Reggie, get off her." The landlord called the police. Two officers went to the house and found Staggs all alone. She had scratches on her face and shoulder and her clothes were torn. Staggs told the police that the other night, her mother came with a truck full of men and beat up Fields. This upset Fields and he took it out her by punching her in the face.

Fields was charged with abuse of a family or household member in violation of HRS § 709-906(1). At a bench trial Staggs testified. She did not recall the statements she gave to the police. On cross-examination, Staggs admitted that she had been drinking that night and that she had provoked Fields by threatening to break his surfboard. One of the police officers also testified about what Staggs said to him when he came to the home. The court found Fields guilty as charged based, in part, on the landlord overhearing the statement, "Reggie, get off her," and on the Staggs' statements to the police.

The Confrontation Clause in Hawai'i. The constitutional right to confront witnesses in a criminal proceeding generally bars hearsay statements whenever the declarant is unavailable for cross-examination. However, the trial court may allow into evidence a hearsay statement so long as it meets the two-part test from Ohio v. Roberts, 448 U.S. 56 (1980)--(1) the declarant is unavailable and (2) the hearsay statement bears an "adequate indicia of reliability" (i.e. it falls within a "firmly-rooted hearsay exception" or there is a showing of a particularized guarantee of trustworthiness based on a totality of the circumstances).

Then came Crawford v. Washington, 541 US 36 (2004). In that case, the US Sup. Ct. took a closer look at the Confrontation Clause and the historical milieu from which it came, and held that the Confrontation Cl. precludes the admission of any "testimonial" hearsay statement. Such a statement is admissible only if (1) the declarant is unavailable and (2) the defendant had an opportunity to cross-examine. Nontestimonial statements, however, do not implicate the federal constitution and their admissibility was to be determined by State hearsay law. Crawford did not define a "testimonial" statement, but did note that statements "made under circumstances which would lead an objective witness reasonable to believe that the statement would be available for use at a later trial" are more likely than not "testimonial." Later, in Davis v. Washington, 126 S.Ct. 2266 (2006) the US Sup. Ct. held that a statement made to a police officer under circumstances showing that the purpose of the police questioning is to enable police assistance in an ongoing emergency is NOT testimonial, but if the purpose of the police questioning is to "establish or prove past events potentially relevant to later criminal prosecution[,]" it is testimonial.

The HSC concluded that the Confrontation Cl. precludes any hearsay statement made by an unavailable declarant when the statement is "testimonial." If nontestimonial, HSC held that the two-step Roberts test applies. However, the HSC, based on footnote 9 in Crawford, held that the Confrontation Cl. does not preclude the admission of a hearsay statement when the person who uttered the statement appears at trial and is cross-examined about that out-of-court statement.

Neither test is invoked? The HSC applied neither the testimonial-thus-Crawford nor the nontestimonial-thus-Roberts analysis with regard to Staggs' statements to the police. Instead, it held that the admission of a prior out-of-court statement does not violate the Hawai'i Confrontation Cl. when (1) the declarant appears at trial and (2) the defendant is afforded a meaningful opportunity to cross-examine the declarant about the prior statement. First, Staggs appeared at trial and testified. Second, although Staggs claimed memory loss about her prior statement to the police on direct examination, Fields had a meaningful opportunity for cross-examination. Fields' counsel, on cross, presented evidence showing that Staggs had been drinking and that she may have provoked Fields. This proved to be an adequate opportunity to cross-examine. This, according to the HSC, satisfies the Confrontation Cl. in Hawai'i.

Landlord's Statements Barred by Failing to Raise Issue to ICA. The HSC moved on to determine whether the landlord's statements should have been kept out, but did not get to the merits of this argument because Fields failed to raise the argument in his opening brief to the ICA (he didn't raise it until the ICA ordered the filing of supplemental briefs). The HSC therefore found no "grave error" on the part of the ICA for ignoring the issue. Moreover, the HSC declined to notice plain error at the appellate level. Nonetheless, the HSC, in footnote 15, observed that the statement, "Reggie, get off her[,]" is nontestimonial and its admissibility would have depended on the Roberts test.

Justice Acoba's Dissent. Justice Acoba believed that Staggs' statement to the police was hearsay that failed to meet any exception allowing its admission, and that admitting the statement arose to plain error. This plain error should have been noticed by the ICA because it adversely affected Fields' substantial rights. This alone would have reversed the judgment. Justice Acoba also notes that the standards for taking up certiorari (grave errors by the ICA or obvious inconsistencies in the ICA disposition with other appellate opinions) are not limitations of the HSC's discretion and it can (and in this case) should recognize plain error.

Justice Acoba also weighed in on the Confrontation Cl. analysis. He would have held that Staggs' statement is "testimonial" and, more importantly, Staggs was unavailable for Hawai'i's Confrontation Cl. Just because, argues Justice Acoba, Staggs was physically present at trial and testified does not mean she was "available." Justice Acoba would afford a broader reading of "availability" under the state confrontation clause and equate it with the "availability" requirements under the Hawai'i Rules of Evidence (HRE). Therefore, failing to recall the statements made at trial would render the declarant "unavailable."

In Sum. First, there's the "testimonial/nontestimonial" distinction. When a statement is "testimonial," the federal constitution is implicated and these statements are not admissible if the declarant was unavailable. When it is "nontestimonial" the federal constitution is not implicated and Hawai'i law steps in. Filling the void is the the Roberts test: it can only be admitted if the statement is reliable and if the declarant is unavailable. The tricky part arises with unavailability. Here, the HSC majority did not expressly hold (Justice Acoba points it out) that Staggs' statements were "testimonial." Instead, it found no Confrontation Cl. preclusion because Staggs appeared at trial and testified, as best as she could, about the statement thereby providing an adequate opportunity to cross-examine her. Moreover, there was a meaningful opportunity to cross-examine her in general. This amounted to "availability" and its ultimate admission into evidence. In essence, the HSC majority has read Crawford to mean that "availability" is not the same thing as "availability" under the HRE. For constitutional purposes, it simply means that the declarant appeared at trial and the defendant had a meaningful opportunity to cross-examine the declarant about the statement. Whether the declarant could remember the statement or not is of no concern.

So what happens once the statement is found testimonial and the declarant is available? Just because the Confrontation Cl. has no problem admitting it, does not mean that the rules of evidence are not implicated. The only time there would be a problem would be if the HRE allow it, but the Confrontation Cl. would not. Therefore, the evidentiary arguments would still apply after this analysis. The HSC never got to these points because the defense counsel never raised these arguments at trial, and before the ICA, which leads to Justice Acoba's other big concern. The HSC majority should have found plain error on the part of the ICA.

In any event, the Confrontation Clause question is only the first step. If a statement survives that part, either under the testimonial-thus-Crawford test or the nontestimonial-thus-Roberts test, it still is subject to the rules of evidence (true, the Roberts test incorporates hearsay rules under the HRE, but a hearsay statement though admissible, is nonetheless subject to HRE Rule 403).

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