Confusing Logic from SCOTUS and Conflict Among Appellate Courts Leave Trial Courts Guessing The Meaning Of Confrontation


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


The Sixth Amendment is one of the most important amendments of the United States Constitution. It ensures that an “accused shall enjoy the right … to be confronted with witnesses against him.” In 1988 the U.S. Supreme Court, in Coy v. Iowa, observed that “it is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’” Just two years later, in Maryland v. Craig, the Court made this follow up observation: “[F]ace-to-face confrontation enhances the accuracy of fact-finding by reducing the risk that a witness will wrongfully implicate an innocent person.” That observation is critically important because, as pointed out by the New York-based The Innocent Project, roughly 75 percent of the nation’s 282 DNA exonerations involved eyewitness misidentification.


Since the Confrontation Clause was forcefully made applicable to the states through the Fourteenth Amendment by the Supreme Court in 1965, in Pointer v. Texas, the Sixth Amendment has been a source of evolving, though conflicting, change in a long line of state cases. In an effort to resolve some of the conflict associated with Sixth Amendment cases, the Supreme Court in 2004 handed down Crawford v. Washington which held that a major underpinning of the Sixth Amendment is to prevent the admission of hearsay evidence because a criminal defendant cannot cross-examine what is called “out-of-court” testimony.
 Crawford clarified the difference between “testimonial” and “nontestimonial” hearsay evidence. Crawford specifically held that the use of testimonial hearsay violates a criminal defendant’s confrontation rights unless the individual making the hearsay statements is unavailable at trial and the defendant had a prior opportunity to cross-examine him/her. Non-testimonial hearsay, on the other hand, does not violate the Confrontation Clause and its admission would be determined by local rules of evidence. Crawford rejected the use of recorded statements given to the police by a wife incriminating her husband in a stabbing incident but who refused to testify against her husband by invoking the marital privilege (here).
Two years later, in Davis v. Washington, the Supreme Court provided a more definitive clarification of testimonial evidence. Davis held that hearsay is testimonial when, under the “totality of the circumstances,” a law enforcement interrogation is part of an investigation into past events about a case and not in response to an “ongoing emergency.” Davis upheld the use of out-of-court statements made to a 911 operator during an emergency call for police assistance which implicated the defendant in domestic violence. Then, in 2009 the Supreme Court handed decided Giles v. California which involved the use of incriminating statements against a husband/accused given to the police by a wife several weeks before she was killed by the accused. Giles held that the incriminating testimonial statements of the deceased wife used against the accused violated the Confrontation Clause.

Crawford, Davis, and Giles seemed to have resolved the issue that witness statements to law enforcement authorities could not serve as a substitute to live, face-to-face actual witness testimony unless obtained from a third party during a response to an “ongoing emergency,” such as a 911 operator. But as the confrontation landscape seemed to settle, the Supreme Court in February 2011 issued Michigan v. Bryant, a case involving a defendant convicted of second-degree murder on the basis of statements made by a mortally wounded victim given to the police as he lay dying on a gas station parking lot—a statement that identified the defendant as the assailant who shot him. Bryant held the victim’s dying statements were actually “nontestimonial” because they were given to “enable police assistance to meet an ongoing emergency” and were not given as part of a criminal investigation. Reasoning that “not all those questioned by the police are witnesses and not all ‘interrogations by law enforcement officers’ … are subject to the Confrontation Clause.”


Bryant befuddles Giles. The police in Giles were investigating complaints of domestic violence between husband/wife. Several weeks before the husband killed the wife, she told the police that her husband had threatened to kill her. The Supreme Court said those statements violated the Confrontation Clause. In Bryant the police were responding to a call that a man was on the ground in a gas station parking lot. Upon arrival, the police realized the man had been shot. The first question the police asked the dying man was who shot him. He identified his killer. The police were not responding to an ongoing medical emergency. Like Giles, they were asking questions in connection with a law enforcement investigation—“who shot you?” has nothing to do with an ongoing medical emergency.


It has indeed been long recognized that “unavailability of a witness” is an exception to the “hearsay rule” and the Confrontation Clause. “Unavailability of a witness” was first recognized by the Supreme Court in 1896 in Mattox v. United States. Mattox held the Confrontation Clause is not violated when the sworn testimony of a witness, who testified at judicial proceeding at which he was subject to adverse cross-examination, was introduced at a subsequent judicial proceeding because the witness was unavailable. More than seven decades later the Supreme Court, in Barber v. Page, clarified Mattox by saying “a witness is not ‘unavailable’ for purposes of the … confrontation requirement, unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.”


In 1980, some twelve years after Barber, the Supreme Court, in Ohio v. Roberts, applied the “good faith” rule in a non-testifying witness case in which the prosecutor spoke to the witness’ mother (who did not know where her daughter was or how to contact her) and issued five subpoenas in the witness’ name to her parents residence during a four-month period. Roberts held that “the lengths to which the prosecution must go to produce a witness is a question of reasonableness.” While Crawford did not overrule the “good faith” rule endorsed in Roberts, it did specifically overrule Roberts’ premise that “testimonial” hearsay did not violate the Confrontation Clause in cases where a witness gives the police a statement but refuses to testify at trial and the statement is subsequently used at a trial at which the statement could not be cross-examined.


On December 12, 2011, the Supreme Court once again muddied the confrontation waters in Hardy v. Cross. Cross involved a situation where a sexual assault victim testified against the accused at trial but the jury was unable to reach a verdict on the charge. The judge declared a mistrial, but the victim disappeared before a re-trial could take place. The State made a number of attempts to locate the victim before advising the trial court that she could not be located and asking the court to declare the witness “unavailable” for trial. The court granted the State’s unavailability request and allowed the victim’s testimony from the first trial to be used against the accused at his re-trial. The jury found the accused guilty.


A very conservative Seventh Circuit Court of Appeals reversed Cross’ conviction, citing three reasons why it felt the State’s efforts to produce the witness were inadequate. First, the appeals court said the State failed to contact the victim’s boyfriend or other friends. Second, the State did not make any inquiries at the cosmetology school where the victim had been enrolled. And, finally, the State failed to serve a subpoena on the victim when she informed prosecutors she would not testify at the re-trial.


In reversing the Seventh Circuit, the Supreme Court in Cross breathed new life into Roberts and weakened Crawford, saying: “As we observed in Roberts, when a witness disappears before trial, it is always possible to think of additional steps that the prosecution might have taken to secure the witness’ presence … but the Sixth Amendment does not require the prosecution to exhaust every avenue of inquiry, no matter how unpromising.”


There is little wonder that the federal circuits are steadily issuing conflicting decisions in light of the Supreme Court’s convoluted approach to state confrontation cases. For example, five years after Crawford, a sharply divided Court decided Melendez-Dias v. Massachusetts which held Crawford prohibited a State from using lab examination “affidavits” attesting to the quantity and nature of a seized drug without producing the individual who conducted the examination. The majority five justices found the affidavits had been prepared for express use at trial which amounted to witness testimony subject to cross-examination. The four remaining dissenting justices argued that Melendez-Diaz was a “mistaken extension” of Crawford. Justice Kennedy, however, made it clear that his support for Melendez-Diaz was limited to “formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” Last June the Supreme Court, in Bullcoming v. New Mexico, reaffirmed Melendez-Diaz in a DWI, holding that a “forensic lab report” which certified a “machine-read-out of blood alcohol level” could not be introduced at trial without the “expert” who prepared the report (here).


On December 9, 2011, in the wake of Melendez-Diaz and Bullcoming, the First Circuit, in United States v. Ramos-Gonzalez, found a Confrontation Clause violation because the trial court permitted a chemist to testify about the “results of a drug analysis he did not conduct.” Just seventeen days earlier, the First Circuit, in Nardi v. Pepe, found no confrontation problem with Massachusetts using a substitute “expert” to testify about the results, and implications, of an autopsy report in a murder case prepared by a doctor who retired to Florida with medical problems and, thus, unavailable for trial. The Nardi trial occurred before Melendez-Diaz and Bullcoming but after Crawford which forced the First Circuit to confine its legal analysis to Crawford. While the appeals court found no violation with the author of an autopsy report not testifying, the court made the following observation which reflects the uncertainty of confrontation jurisprudence since Crawford:


“Abstractly, an autopsy report can be distinguished from, or assimilated to, the sworn documents in Melendez-Diaz and Bullcoming, and it is uncertain how the [Supreme] Court would resolve the question. We [have] treated such reports as not covered by the Confrontation Clause … but the law has continued to evolve and no one can be certain what the Supreme Court would say about that issue today.”


The uncertainty expressed by the First Circuit is precisely why the Ninth Circuit on December 12, 2011—just three weeks after Nardi—in Merolillo v. Yates, reached a completely opposite finding relative to autopsy reports. The appeals court found a confrontation violation because the State elicited an absent pathologist’s opinion about an autopsy when cross examining a defense expert about a conflicting opinion as to cause of death. The Merolillo facts are as follows:


“At trial in January 2001, Dr. Garber was not called to testify. Rather, the prosecution called two other pathologists to testify—Dr. Cohen, the head pathologist from the coroner’s office, and Dr. Bloor, a professor of medicine and pathology from the University of California, San Diego. The defense again called Dr. Herrmann.


“Dr. Garber was not called to testify nor was his autopsy report admitted into evidence. Nevertheless, over defense counsel’s repeated objections, Dr. Garber’s opinion was elicited by the prosecution during cross-examination of the defense expert, Dr. Herrmann. Dr. Herrmann was asked to explain his disagreement with Dr. Garber’s opinion that head trauma contributed to Mrs. Chromy’s death. In response, Dr. Herrmann testified that he believed Mrs. Chromy’s pre-existing medical conditions likely contributed to the cause of death, but that neither head trauma nor torso trauma contributed to her death. Earlier in the trial, the two experts called by the prosecution had not adopted Dr. Garber’s opinion. Dr. Cohen had testified that torso trauma may have contributed to the cause of death, but gave conflicting testimony as to whether head trauma may have contributed to her death or to the cause of death. Dr. Bloor testified that torso trauma contributed to the cause of death, but that head trauma did not. Therefore, Dr. Garber’s inadmissible opinion was the only expert opinion provided to the jury that head trauma definitely contributed to Mrs. Chromy’s death.


“All the pathologists agreed that the immediate cause of Mrs. Chromy’s death was a dissecting aortic aneurysm, also called an acute aortic dissection. But they disagreed on whether the aneurysm was caused by the trauma inflicted during the carjacking or whether it developed later, caused by other factors. The experts testified that an aneurysm can be caused by long-standing hypertension, atherosclerosis, various syndromes, and trauma. Mrs. Chromy had heart disease, hypertension and severe atherosclerosis, as well as a prior history of strokes.”


The Ninth Circuit not only found constitutional error in the prosecution getting Dr. Garber’s autopsy opinion before the jury, albeit during cross-examination of a defense witness, but also concluded the error was sufficiently prejudicial to warrant a reversal of Merolillo’s conviction.


We suspect the uncertainty will continue to increase as the Supreme Court continues to send out mixed signals about the parameters of the Confrontation Clause.  The Sixth Amendment is fairly straight forward: “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him…” It should be an equally straight forward task to develop a simple rule guarantees this fundamental right.


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair 
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization