Confrontation Clause - Crawford v. Washington

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004)

Overruling Ohio v. Roberts, in part, the Supreme Court held that the Confrontation Clause bars the use of out-of-court declarations that are “testimonial” in nature and which do not satisfy a standard “firmly rooted” hearsay exception. The Ohio v. Roberts “indicia of reliability” alternative basis for admitting out of court statements was jettisoned in this case. The Court did not set forth a precise definition of “testimonial” but held that statements made to law enforcement officers certainly fit the definition and therefore are excluded, regardless of the “indicia of reliability” of the statement. The same applies for prior sworn testimony that was not subject to cross-examination.

Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009)

Crawford applies to crime lab technicians. Thus, a state law that allows the prosecution to introduce a crime lab report without bringing in the technician for cross-examination is unconstitutional.

Williams v. Illinois, 132 S. Ct. 2221 (2012)

A very complicated decision that appears to alter the landscape of the Bullcoming and Melendez-Diaz terrain. In this case, a DNA test established that the blood of the perpetrator had certain characteristics. Nobody from Celllmark testified. However, an expert was permitted to testify that the DNA results from Cellmark matched the DNA of the defendant. This was a bench trial, a fact stressed by Judge Alito in his plurality opinion. He concluded that the Cellmark test results were not actually introduced for the truth of the matter asserted. He also concluded that even if they were introduced for that purpose, it was not a Confrontation Clause violation. The fifth vote, by Justice Thomas, agreed that it was not a Confrontation Clause violation for an entirely different reason. Justice Breyer, who agreed with Justice Alito, stressed the fact that it was a bench trial. Four Justices concluded that this was a Confrontation Clause violation.

Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 (2006)

If a person makes a 911 call to report a crime – particularly an ongoing crime – and the purpose of the call is to seek immediate aid, the statement is not “testimonial” in the Crawford sense. But if a person tells the police facts about a past crime, that statement is “testimonial” in the Crawford sense. The focus of the inquiry is on the “primary purpose” of the interrogation. The Court noted that even in the 911-call situation, if the conversation evolves into a recitation of past facts, the trial court should redact the statement to ensure that any “testimonial” component of the statement is eliminated.

Michigan v. Bryant, 131 S. Ct. 1143 (2011)

The police responded to a report that a man had been shot. When the police arrived, they asked him what happened. The victim said that he had been shot by “Rick” at “Rick’s house. Shortly thereafter the victim was taken to the hospital and died. The Supreme Court concluded that the victim’s statements to the police were not “testimonial” and were not barred by the Confrontation Clause. The existence of an “emergency” as that term was discussed in Davis v. Washington is not outcome-determinative on the question of whether a statement is testimonial. The ultimate question is whether the statement by the declarant was obtained or made for the purpose of subsequent use, or to deal with an immediate cause for concern. The type of weapon used, the location of the assault or shooting, the relationship between the victim and the assailant, the location of the assailant, are all factors that are relevant in deciding why the police asked the questions and why the declarant responded.

Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011)

The Supreme Court decided that a surrogate crime lab technician may not be used to offer testimony about a drug test, or other chemical test that the surrogate did not participate in performing. Simply reciting what another analyst wrote, or reading the results from the machine that the surrogate did not have any role in preparing, violates the Confrontation Clause.

Ohio v. Clark, 135 S. Ct. 2173 (2015)

The child victim made a statement to a teacher about being molested by his mother’s boyfriend. The Supreme Court held that the statement to the teacher did not qualify as a “testimonial” statement covered by the Confrontation Clause. The child’s statements to the teacher were not made for the “primary purpose” of creating evidence for the prosecution of the perpetrator.

United States v. Brooks, 772 F.3d 1161 (9th Cir. 2014)

A postal inspector was permitted to repeat what he was told by the supervisor about the identity of the person who was mailing certain parcels. The fact that the supervisor’s statements were not repeated verbatim is irrelevant. The content of the supervisor’s identification testimony was introduced and the defendant was not able cross-examine the supervisor. “Out of court statements admitted at trial are stateements for the purpose of the Confrontation Clause if, fairly read, they convey to the jury the substance of an out-of-court, testimonial statement of a witness who does not testify at trial.” The statements in this case were testimonial, because the supervisor knew his statements were being used to further an investigation and would be used to collect information necessary to make out a case against the suspect.

McCarley v. Kelly, 759 F.3d 535 (6th Cir. 2014)

A child’s statements to a child psychologist about the murder of the child’s mother were testimonial statements and allowing the psychologist to read these statements to the jury violated Crawford. The Supreme Court granted cert and reversed and remanded for further consideration in light of Davis v. Ayala (2015). Query whether this case survived the decision in Ohio v. Clark?

United States v. Ferguson, 752 F.3d 613 (4th Cir. 2014)

At the defendant’s supervised release revocation hearing the government offered a laboratory analysis to prove that the substance possessed by the defendant was marijuana. Rule 32.1(b)(2)(C) permits hearsay evidence if the government offers good cause for not presenting first hand information (such as the unavailability of the witness). There was no showing of good cause in this case. Even a showing of reliability is not alone sufficient to establish good cause, though reliability of the evidence is also a component of good cause.

United States v. Duron-Caldera, 737 F.3d 988 (5th Cir. 2013)

The fact that an out of court declarant made a statement that was not “accusatory” does not mean that it was not “testimonial” or that it comes within the rule announced in Williams v. Illinois. In this case, the out of court declaration was testimonial and was inadmissible under the Confrontation Clause. The statement was made by the defendant’s grandmother decades earlier in an affidavit that was prepared in connection with an investigation of the defendant’s parents’ immigration status. It was used in this case, which alleged that the defendant was guilty of illegal reentry.

United States v. James, 712 F.3d 79 (2d Cir. 2013)

If there is any uncertainty about the complexity or long-term effect of the decision in Williams v. Illinois, 132 S. Ct. 2221 (2012), this decision should dispel that thought. The Second Circuit concludes that there is no way to discern what is the holding subscribed to by a majority of the Justices and, furthermore, there is no way to determine with any degree of certainty, whether the holding requires th exclusion of testimony relating to an autopsy and toxicology report. The case is an excellent primer on the confusing nature of the Williams decision.

United States v. Cameron, 699 F.3d 621 (1st Cir. 2012)

A report from Yahoo! that implicated the defendant in the possession and trading of child pornography should not have been admitted at trial. The report qualified as testimonial evidence. The court held that these reports did not qualify as business records.

United States v. Bustamante, 687 F.3d 1190 (9th Cir. 2012)

In order to prove the defendant’s guilt of illegal reentry, the government introduced a document purporting to be a transcription of a birth certificate from the Phillipines. The Ninth Circuit held that this document was testimonial and introducing it at trial violated defendant’s Confrontation Clause rights. The document was not an actual birth certificate, but a document prepared by a Phillipine officieal in response to a request for this information by an American official. Thus, it was prepared for use at trial and it fell within the scope of the Confrontation Clause.

United States v. Walker, 673 F.3d 649 (7th Cir. 2012)

The government offered considerable evidence about what an informant said, and did, without putting the informant on the stand. Undercover tapes in which the informant talked to the defendant and statements that the informant made to the officers were also introduced. The Seventh Circuit held that the Confrontation Clause was violated, but it was harmless error.

Peak v. Webb, 673 F.3d 465 (6th Cir. 2012)

The government played the confession of a co-conspirator who made himself available to testify if either party called him as a witness. Without deciding whether this procedure violated the Confrontation Clause, the Sixth Circuit held that under the AEDPA standard, it was not so clear that this violated the Constitution since the witness was available to be cross-examined.

United States v. Ignasiak, 667 F.3d 1217 (11th Cir. 2012)

The defendant, a doctor, was charged with over-prescribing pain medication resulting in the deaths of certain patients. Over a Confrontation Clause objection, the government was permitted to introduce autopsy reports through the testimony of a medical examiner who did not perform the autopsy. The Ignasiak court held that the autopsy reports qualified as “testimonial” evidence. The government argued that the reports were admissible under the business records exception to the hearsay rule. The Eleventh Circuit rejected this argument. The exceptions to the hearsay rules are not automatically exceptions to the Confrontation Clause. Of course, most business records are not “testimonial” in nature, because they are not prepared in anticipation of being used “prosecutorially.” Autopsy results, however, are prepared with this expectation. Thus, the Confrontation Clause applies and the reports should only have been admitted through the testimony of the person who actually performed the autopsy.

United States v. Ramos-Gonzalez, 664 F.3d 1 (1st Cir. 2011)

Utilizing an expert witness to testify about crime lab results (drug analysis) despite the fact that the expert was not present when the drug tests were performed, violates Bullcoming, even though the actual drug test results were not introduced in evidence. This is a pre-Williams v. Illinois decision and the First Circuit expressly noted that the decision in Williams (which had already bee argued, but not yet decided when this decision was reached), could impact the result in this case.

Merolillo v. Yates, 663 F.3d 444 (9th Cir. 2011)

The defendant was charged with murder. He carjacked a vehicle and one of the occupants tried to escape, but was dragged along the payment for several hundred yards before breaking free. One month later she died from a ruptured aorta. The issue at trial was whether the defendant’s conduct caused her death. An autopsy pathologist testified at a preliminary hearing, but his testimony was somewhat equivocal, though he ultimately concluded that the carjacking was a contributing cause of death. At trial, the prosecution did not call that witness to the stand. Instead, the prosecutor called other experts, each of whom relied, to some extent, on the conclusions of the autopsy pathologist. This violated the defendant’s Confrontation Clause rights.

United States v. Moore, 651 F.3d 30 (D.C.Cir. 2011)

In this lengthy drug/murder/CCE trial, certain crime lab and autopsy evidence was offered that violated the rule announced in Bullcoming (a decision that was issued after oral argument in this case). The D.C. Circuit remanded certain counts of conviction to the trial court to evaluate whether admitting the evidence in violation of the Confrontation Clause was harmless error.

Ocampo v. Vail, 649 F.3d 1098 (9th Cir. 2011)

A police officer testified that a witness – who was not available to tesify, because he had returned to Mexico – corroborated the testimony of other witnesses that implicated the defendant’s presence at the shooting. Though the specifics of what the missing witness said was not revealed, the substance of his testimony was unmistakable and was not only introduced through the testimony of the officer, but was also relied on during the prosecutor’s closing argument as further proof of the defendant’s guilt. The Ninth Circuit ordered that the writ be granted.

United States v. Meises, 645 F.3d 5 (1st Cir. 2011)

A DEA agent was asked on direct examination whether he interviewed one of the drug conspirators who had been arrested. He responded that he did interview him. He was then asked if he did anything after that interview. He responded that he arrested the defendant. This violated the Confrontation Clause. Masking the hearsay by not asking specifically what was said by the conspirator did not avoid the error.

United States v. Smith, 640 F.3d 358 (D.C. Cir. 2011)

The defendant was charged with possession of a firearm by a convicted felon. Just prior to trial, the prosecutor asked the clerk of the court where the defendant had his felony conviction to verify his record. The clerk sent a letter that verified the existence of a felony conviction. The letter was signed by the clerk and was “certified.” The court held that this violated the Confrontation Clause. The letter was testimonial – it was written for the express purpose of being used at defendant’s trial.

Jones v. Basinger, 635 F.3d 1030 (7th Cir. 2011)

The defendant was charged with murder. The key witness for the state testified that he participated in the home invasion with the defendant. That witness was vigorously cross-examined. The prosecution responded by calling the police officer who received a tip from an informant who provided considerable evidence against the defendant, as well as recited what he (the informant) had been told by one of the other participants in the murder. The state argued that this was offered to explain the police officers’ investigation and not for the truth of the matter asserted in the informant’s statement. The Seventh Circuit held that the evidence was not, in fact, offered for this purpose and was inadmissible hearsay that violated the Confrontation Clause.

United States v. Causevic, 636 F.3d 998 (8th Cir. 2011)

The defendant was prosecuted for a § 1001 and § 1546 violation, relating to lying on an immigration form about whether he had ever killed anybody (he denied having ever killed anybody). In order to prove that this was a lie, the government introduced a Bosnian conviction for murder. The defense claimed that this violated his Confrontation Clause rights. The Eighth Circuit agreed. Though the judgment (proof of the conviction for murder) is admissible as a public record, the judgment was not admissible of proof of the facts underlying the conviction. In short, the judgment was admissible to prove that the defendant had been convicted of murder; but it was not admissible to prove that he had ever killed anybody. See also Kirby v. United States, 174 U.S. 47 (1899).

United States v. Jackson, 636 F.3d 687 (5th Cir. 2010)

A DEA agent explained how and why drug traffickers keep drug ledgers. A co-conspirator’s drug ledgers that implicated the defendant were then introduced into evidence under the Business Records exception to the hearsay rule (the co-conspirator did not testify) and as a co-conspirator statement. The Fifth Circuit held that this was error. The agent’s testimony did not satisfactorily authenticate the records, or establish the necessary foundation that these records were kept in the regular course of business or that they were prepared during the course of the conspiracy. Though a person other than a record custodian may authenticate a business record, the witness must be able to authenticate this business record and not, as here, business records (or drug ledgers) in general. Admitting the ledgers constituted a violation of Confrontation Clause and required that the conviction be reversed. The Fifth Circuit further explained that the notebooks were inadmissible on Confrontation Clause grounds, because the government failed to prove that they were not testimonial. Because no effort was made to authenticate the notebooks (i.e., how or when they were written), the introduction of the notebooks became, in essence, the functional equivalent of the author testifying live in court. It is the government’s burden to prove that an out-of-court statement is non-testimonial.

United States v. Williams, 632 F.3d 129 (4th Cir. 2011)

The government asked the defense to stipulate to the drugs in this drug prosecution. The defense attorney agreed, but the defendant himself objected. The defense attorney told the judge that she would stipulate, over the objection of the defendant, if the court approved. The court approved. This violated the defendant’s Confrontation Clause rights. Though a defense attorney may waive the Confrontation Clause rights of a defendant under usual circumstances, this waiver may not occur over the objection of the defendant.

United States v. Holmes, 620 F.3d 836 (8th Cir. 2010)

The issue in this case was whether the defendant lived at a house where drugs and guns were found during the execution of a search warrant. When cross-examining the police officer, the defense attorney asked whether a certain item of evidence was all there was linking the defendant to the house. On re-direct, the prosecutor asked the officer to read the search warrant affidavit at length, which included the statement of a C.I. who did not testify at trial and who linked the defendant to the house. The Eighth Circuit held that this was error on hearsay and Confrontation Clause grounds. The evidence was not offered to “explain the officer’s conduct” and the defense attorney’s cross-examination did not “open the door” to the rebuttal, or waive the defendant’s Confrontation Clause guarantee.

United States v. Gomez, 617 F.3d 88 (2d Cir. 2010)

The police arrested Rivas. The officer told Rivas to call the person who supplied him with all the ecstasy pills. Rivas called the defendant, Gomez. At trial, the government offered this evidence to support the charge that Gomez was the supplier for Gomez. Rivas did not testify at trial. The Second Circuit reversed the conviction, holding that this was hearsay evidence (by inference) that also amounted to a violation of the Confrontation Clause. Even a limiting instruction by the court to the jury cautioning the jury not to consider the evidence for the truth of the matter asserted was not sufficient to cure the error. See also Ryan v. Miller, 303 F.3d 231 (2d Cir. 2002).

United States v. Smalls, 605 F.3d 765 (10th Cir. 2010)

This case contains a thorough review of the impact that Crawford had on Ohio v. Roberts and explains the current Confrontation Clause jurisprudence. The court explained that Ohio v. Roberts was wrong for two reasons, according to Crawford. First, with regard to non-testimonial hearsay, the Confrontation Clause provides no prohibition. If the out-of-court statement is not testimonial, then only the traditional hearsay rules apply, not the Confrontation Clause. On the other hand, if the out-of-court statement is testimonial, then the statement is automatically excluded, regardless of how reliable it is. Thus, Ohio v. Roberts excluded some testimony that should have been admissible (at least under Constitutional standards) and permitted the introduction of other evidence that should have been excluded without regard to reliability.

Jones v. Cain, 600 F.3d 527 (5th Cir. 2010)

A witness to a murder provided recorded statements to the police prior to his death from unrelated causes. He also testified at a suppression hearing prior to this death. His testimony at the suppression hearing was admissible, because it was prior sworn testimony. His statements to the police, however, were not admissible. The state argued that the statements to the police were not offered for the truth of the matter asserted, but this was clearly belied by the record. The statements were not merely used to “shore up the witness’s credibility” or to “explain the investigators’ conduct.”

United States v. Martinez-Rios, 595 F.3d 581 (5th Cir. 2010)

A “certificate of the non-existence of a record” is a testimonial statement that is covered by Crawford. In this case, the government introduced a certificate that established that the defendant’s alien file revealed no documents that allowed him to re-enter the country.

Jensen v. Romanowski, 590 F.3d 373 (6th Cir. 2009)

During the defendant’s state trial, an officer testified about what a prior victim told him about the defendant’s sexual assault. There was no basis for admitting this hearsay evidence and this violation of the Confrontation Clause necessitated granting a writ of habeas corpus.

Bobadilla v. Carlson, 575 F.3d 785 (8th Cir. 2009)

A child’s statement to a clinical social worker who has been asked to conduct a forensic interview in connection with a child abuse investigation is “testimonial” under Crawford. In this case, the child’s statement to the social worker was admitted at trial and the child was deemed incompetent to testify live at trial. The Eighth Circuit held that this violated the Confrontation Clause.

United States v. Tuyet Thi-Bach Nguyen, 565 F.3d 668 (9th Cir. 2009)

Allowing an officer to testify about the statement of a co-defendant and then allowing the co-defendant’s counsel to cross-examine the agent eliciting further details about the co-defendant’s statement was reversible error as to the defendant. The Ninth Circuit states, during the course of the opinion, that admitting the co-defendant’s statement was a Crawford Confrontation Clause violation and whether or not the statement implicated the defendant only related to the harmless/harmful nature of the error.

United States v. Lee, 549 F.3d 84 (2d Cir. 2008)

The government conceded that introducing the out-of-court statement of a conspirator that implicated the defendants in the murder for hire was error. The Second Circuit concluded that the error was not harmless beyond a reasonable doubt and reversed the defendants’ convictions.

United States v. Mejia, 545 F.3d 179 (2d Cir. 2008)

The government offered the testimony of an expert in this gang case. The expert testimony about the structure of the gang, its history and various other matters that was admissible because (1) the testimony was not based on any data or information that was the proper subject of expert testimony; (2) the testimony included the expert’s lay opinion, rather than expert opinion; (3) the expert simply repeated some things he was told by co-conspirators and was therefore testimonial hearsay in violation of Crawford. Reversible error.

United States v. McGee, 529 F.3d 691 (6th Cir. 2008)

The statements of a confidential informant to a police officer providing information about the defendant qualify as testimonial and, in this case, the officer should not have been permitted to testify about what the informant told him, even as “background” or to “explain the officer’s conduct.” Harmless error.

United States v. Harwick, 523 F.3d 94 (2d Cir. 2008)

Introducing the co-conspirators plea colloquy was plain error in light of Crawford.

United States v. Alvarado-Valdez, 521 F.3d 337 (7th Cir. 2008)

The defendant’s co-conspirator fled to Mexico prior to trial. Before fleeing, however, the co-conspirator made a lengthy statement to the police, outlining the defendant’s role in the conspiracy. The trial was held pre-Crawford and the trial court held that the statements had sufficient indicia of reliability. Post-Crawford, the Seventh Circuit held that this was reversible error. The government’s effort to establish harmless error under the Chapman v. California standard was rejected.

United States v. Maher, 454 F.3d 13 (1st Cir. 2006)

The fact that the government offers an informant’s statements to the police “to explain the officer’s conduct” does not eliminate a Confrontation Clause problem. If the point of the inquiry is simply to explain what the officer did, then the officer should simply be asked, “Based on information received did you . . .” Because the defense did not object in this case, however, the error was only reviewed for plain error and was not sufficiently prejudicial to require setting aside the judgment.

United States v. Santos, 449 F.3d 93 (2d Cir. 2006)

The trial court redacted portions of a co-defendant’s post-arrest statement and removed references to the defendants and instructed the jury not to consider the statement as evidence of the defendants’ participation in the conspiracy. However, the statement that was included revealed that the intention of the conspirators was to rob through the use of force. This was a contested element of the Hobbs Act prosecution and admitting this portion of the statement violated the remaining defendants’ confrontation clause rights.

United States v. Hinton, 423 F.3d 355 (3d Cir. 2005)

An out of court statement qualifies as “testimonial” if statement was made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. The defendant’s statement to the police identifying the perpetrator was a testimonial statement. Harmless error.

United States v. Pugh, 405 F.3d 390 (6th Cir. 2005)

Introducing the out-of-court identification statement of a witness that fingered the defendants as the bank robbery (based on the declarant’s viewing of a surveillance tape) violated Crawford. The statement was given by the declarant to a police investigator (thus it was “testimonial”) and the statement was offered for the truth of the matter asserted – not, as the government suggested, merely to explain the officer’s conduct.

Murillo v. Frank, 402 F.3d 786 (7th Cir. 2005)

The state trial court erroneously admitted the statement of a witness who made a custodial statement implicating the defendant shortly after the murder. The witness refused to testify at trial, even with a grant of immunity. This evidence would clearly be barred under Crawford, but Crawford does not apply retroactively. Nevertheless, this evidence was also inadmissible under Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887 (1999).

United States v. Bordeaux, 400 F.3d 548 (8th Cir. 2005)

A child’s statement to a social worker who was investigating charges of child molestation was “testimonial” and introducing these statements violated the defendant’s Confrontation Clause rights. Significantly, the child’s testimony at trial was partially conducted via closed-circuit television, thus the defendant’s Confrontation Clause rights were not protected by the child’s in-court appearance. The court also reversed the conviction based on the use of the closed-circuit television (see annotation in previous seciont).

United States v. Summers, 414 F.3d 1287 (10th Cir. 2005)

Attempting to provide answers that were side-stepped by Crawford, the Tenth Circuit holds that statements that qualify as “testimonial” reflect the objective intention of the declarant. Thus, the question is whether “a reasonable person would objectively foresee that his statement might be used in the investigation or prosecution of a crime.” In this case, a bank robber, when apprehended by the police, asked, “How did you guys find us so fast?” This was a testimonial statement and introducing the statement against the defendant violated his confrontation clause rights. Harmless error.

Dorchy v. Jones, 398 F.3d 783 (6th Cir. 2005)

At Dorchy’s trial, the state was permitted to introduce the testimony of a witness who could not be located that was given at a co-defendant’s earlier trial. Evaluating the Confrontation Clause issue under Ohio v. Roberts (this case was tried prior to Crawford), the Sixth Circuit held that the state court’s decision was clearly contrary to the law even under Ohio v. Roberts. There were no particularized guarantees of trustworthiness, and the fact that the witness was cross-examined by a co-conspirator’s counsel was factually erroneous, because the defense in the earlier trial was clearly not the same as the defense in this case.

United States v. Gilbert, 391 F.3d 882 (7th Cir. 2004)

When the defendant’s spouse refused to testify at trial, relying on the marital privilege, the trial court allowed the government to play her previous statement, because the court found that it had circumstantial guarantees of trustworthiness. Post-Crawford, this was erroneous.

United States v. Rodriguez-Marrero, 390 F.3d 1 (1st Cir. 2004)

The government offered the testimony of a witness who recited what a cooperating witness had told him. The government argued that the cooperating witness’ death (he was murdered) rendered the evidence admissible, because the statements were reliable and because the defendant “acquiesced” in his murder, though he was not directly responsible for the murder. The First Circuit held that Crawford v. Washington barred this evidence on Confrontation Clause grounds, and that Rule 804(b)(6) did not apply, because the lower court made no findings that would support the conclusion that the defendant was responsible (in the conspiratorial sense) for the murder of the witness, as opposed to simply being aware of the order from others that the witness was to be killed.

United States v. Cromer, 389 F.3d 662 (6th Cir. 2004)

During the defendant’s cross-examination of a police officer, he asked questions about a CI’s description that linked him to drug dealing. On re-direct, the government was permitted to pursue this line of questioning by asking about the specific statements made to the police by the CI. The trial court admitted the hearsay on the basis that the defendant “opened the door.” The Sixth Circuit disagreed. While as a matter of evidence law, the defendant may have opened the door, as a matter of constitutional law, he did not forfeit his rights under the Confrontation Clause. The admission of the CI’s statement to the police was a clear violation of Crawford. The cross-examination of the police officer amounted to foolish trial strategy, not misconduct that would forfeit the Confrontation Clause rights. Moreover, the government elicited other hearsay from the officer when he was asked about the basis for obtaining a search warrant.

United States v. Bruno, 383 F.3d 65 (2d Cir. 2004)

The trial court committed plain error in permitting the government to introduce the plea allocution of one co-conspirator and the grand jury testimony of another. These statements were “testimonial” under the Crawford definition. The inadmissible evidence was critical evidence with regard to certain counts of the indictment and reversal on those counts was therefore required.

United States v. Wilmore, 381 F.3d 868 (9th Cir. 2004)

The government’s introduction into evidence of a witness’s grand jury testimony, coupled with the lower court’s restriction of defendant’s cross-examination of that government witness amounted to a violation of defendant’s Confrontation Clause rights and necessitated reversal of the conviction. The witness had testified at the grand jury that she had seen the defendant (charged with being a felon in possession of a gun) in possession of a gun. At trial, she was called as a witness for the government and denied seeing the defendant in possession of the weapon. The government introduced relevant portions of the grand jury testimony and when the witness was confronted by the government with her previous grand jury testimony, she ultimately invoked her Fifth Amendment rights. The judge then instructed defense counsel to avoid asking any questions that would lead to further invocations of the Fifth Amendment. This was erroneous. Because the grand jury testimony was actually introduced in evidence by the government, the defendant could not be limited in his cross-examination of the witness regarding the circumstances of that testimony. More importantly, the introduction of the grand jury testimony amounted to testimony that was not subject to cross-examination, which violated Crawford v. Washington, 124 S.Ct. 1354 (2004).

United States v. McClain, 377 F.3d 219 (2d Cir. 2004)

Relying on Crawford, the Second Circuit held that the admission of co-conspirators’ plea allocutions was error, but harmless. See also United States v. Al-Sadawi, 432 F.3d 419 (2d Cir. 2005) (same)

United States v. Jones, 371 F.3d 363 (7th Cir. 2004)

The defendant’s co-codefendant confessed to the crime with which he was charged, but then became a fugitive prior to trial. The government offered the co-conspirator’s confession at trial, though all references to the defendant were redacted. The Seventh Circuit held that the statement should not have been admitted. First, because the declarant was not at trial, the statement obviously could only be used against the defendant, thus, redacting the defendant’s name did not satisfy the Bruton concerns. Second, according to Crawford v. Washington, this statement could not be admitted without violating the defendant’s right of confrontation.