Courts of Appeal Continue Struggle with Crawford and Progeny
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


Reinaldo Berrios, Troy Moore, Angel Rodriquez, and Felix Cruz were charged, and ultimately convicted, of a series of violent felonies in Puerto Rico and the Virgin Islands in 2004, including the murder of an off-duty police officer during an attempted robbery. They were sentenced to consecutive life sentences and dozens of years in both federal court and Virgin Island courts. The sentencing message in these cases was evident: the felons would spend the rest of their lives in prison.


That’s why the appeal of their convictions were so important—appeals that focused primarily on a claimed constitutional violation of the Confrontation Clause. While Berrios and Moore were housed in a detention facility in Guaynabo,  Puerto Rico, the Government sought, and secured, pursuant to 18 U.S.C. § 2510, a Title III surveillance application to monitor the conversations of the two pre-trial detainees. The surveillance included both video and sound recordings. A treasure trove of incriminating evidence was obtained through this surveillance method. In one captured conversation as the two men enjoyed the facility’s “recreational yard,” Berrios and Moore discussed the shooting of the off-duty police officer, their respective roles in the killing, and their getaway. Referring to him by nickname, the two men identified Rodriquez as the getaway driver. And, as if that was not enough, Moore threatened to kill someone who worked at a store with his girlfriend and who was being regularly interrogated by the police.


The Title III recorded conversations between Berrios and Moore formed what the Third Circuit Court of Appeals called earlier this month “the cornerstone of the prosecution’s case against Rodriquez, Cruz, and Moore. The Third Circuit elected to use this case as its precedent ruling to resolve a number of issues surrounding the Confrontation Clause in the wake of a number of Supreme Court rulings (rulings we have discussed here and here).


In 1980 the Supreme Court handed down the definitive application of the Confrontation Clause in crime cases in Ohio v. Roberts. In that case, the Court laid down what became known as the “indicia of reliability” test—an absent witness’s hearsay statements could be used in a criminal trial only if 1) the witness was unavailable at time of trial and 2) if the statements offered an “indicia of reliability,” which fell either in “a firmly rooted hearsay exception” or the prosecution made a showing of “particularized guarantees of trustworthiness.”


The Roberts test remained the constitutional standard until twenty-four years later when the Supreme Court handed down Crawford v. Washington, which held That, in order for “testimonial” evidence to be admissible, the Confrontation Clause of Sixth Amendment demands unavailability of the witness and a prior opportunity for cross-examination.   Crawford did not include a comprehensive definition of ‘testimonial,’ but it noted that testimonial evidence includes, among other things, prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.


Crawford did not end the Supreme Court’s assault on Roberts. In a trilogy of subsequent cases, the Court overruled Roberts entirely. First, in 2006, the Court handed down Davis v. Washington, which explicitly held that the Confrontation Clause applies to “testimonial” hearsay statements and not to “non-testimonial” hearsay statements whose admissibility is governed solely by Federal or state rules of evidence. The Court held that statements are nontestimonial when made in the course of police interrogation under circumstances “objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”  Crawford and Davis, however, left untouched the longstanding rule of the Court’s decision in Cruz v. New York that a non-testifying co-defendant’s confession must be excluded, even when it only corroborates the defendant’s own confession.


The brutal assault against Robert’s “indicia of reliability” standard took a decided turn in 2007, one year after Davis, when the Supreme Court decided Whorton v. Bockting which held that “under Crawford … the Confrontation Clause has no application to [out-of-court non-testimonial statements] and therefore permits their admission even if they lack indicia of reliability.”  The Court stated that Crawford eliminated Confrontation Clause protection against the admission of unreliable out-of-court nontestimonial statements.  “Under Roberts, an out-of-court nontestimonial statement not subject to prior cross-examination could not be admitted without a judicial determination regarding reliability. Under Crawford, on the other hand, the Confrontation Clause has no application to such statements and therefore permits their admission even if they lack indicia of reliability.”


Then, last year, the Supreme Court with Michigan v. Bryant stood firmly amidst the ashes of “indicia of reliability” test and declared for all the lower courts to hear: the Confrontation Clause is limited to testimonial statements only.  Nontestimonial statements made to the police under circumstances indicating they were made with the “primary purpose . . . to enable police assistance to meet an ongoing emergency” are not testimonial and their admission at trial do not violate the Confrontation Clause.


These post-Crawford decisions by the Supreme Court put some of the federal circuits, like the Third Circuit, in a legal quandary. The Third Circuit, like most other circuits, had interpreted Crawford to apply only to testimonial statements in the sense that Roberts’ “indicia of reliability” would continue to apply to nontestimonial hearsay statements.


In its first post-Crawford decision, the Third Circuit in United States v. Hendricksheld that “[U]nless a particular hearsay statement qualifies as ‘testimonial,’ Crawford is inapplicable and Roberts still controls.” Hendricks remained the leading precedent, as pronounced in United States v. Jimenez [“nontestimonial statements do not violate the Confrontation Clause and are admissible as long as ‘they are subject to a firmly rooted hearsay exception or bear an adequate indicia of reliability’”], until Berrios presented itself. To avoid further constitutional confusion, the Third Circuit elected to use Berrios to completely adopt the Supreme Court’s jurisprudence laid down in Whorton, Davis, and Bryant. The Third Circuit then laid down its new Confrontation Clause application:


“Thus, our Confrontation Clause inquiry is twofold. First, a court should determine whether the contested statement by an out-of-court declarant qualifies as testimonial under Davis and its progeny. Second, the court should apply the appropriate safeguard. If the absent witness’s statement is testimonial, then the Confrontation Clause requires ‘unavailability and a prior opportunity for cross-examination.’ [citing Crawford]. If the statement is nontestimonial, then admissibility is governed solely by the rules of evidence. [citing Davis].


“Applying this two-part test to the Title III recording at issue here, we have little hesitation in concluding that the recorded conversation was not testimonial, and thus not subject to Confrontation Clause scrutiny. Although we lack an authoritative definition of ‘testimonial,’ we addressed the admissibility of similar Title III recordings of conversations between various nontestifying defendants and third parties. After comparing these recordings to the examples which the Supreme Court stated were definitively testimonial, such as ‘prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and police interrogations,’ we reasoned that a ‘surreptitious’ Title III recording neither qualified as ‘ex parte in-court testimony or its functional equivalent,’ nor formalized ‘extrajudicial statements.’ Cognizant that ‘a witness ‘who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not,’” we noted that ‘the surreptitiously monitored conversations and statements contained in the Title III recordings [we]re not ‘testimonial’ for purposes of Crawford.’”


The Third Circuit turned to Bryant for guidance which outlined “interrogations by law enforcement officers [that] fall squarely within [the] class of testimonial hearsay.” The appeals court pointed out that Davis dealt with whether statements made during a 911 call to law enforcement about domestic violence qualified as “testimonial” under the Confrontation Clause.  Both Davis and Bryant essentially held, as explicitly stated in Davis, that statements for which “the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal investigations” are testimonial but those made to enable police to meet an ongoing emergency are not.


The Third Circuit continued its analysis in Berrios:


“It is likewise clear that, in the present case, the contested statements bear none of the characteristics exhibited by testimonial statements. There is no indication that Berrios and Moore held the objective of incriminating any of the defendants at trial when their prison yard conversation was recorded; there is no indication that they were aware of being overheard; and there is no indication that their conversation consisted of anything but ‘casual remark[s] to an acquaintance.’ [citing Crawford]. Nor do we think that a surreptitious recording falls within the category of ‘abuses’ which, historically, the Framers were concerned about eradicating from the government’s investigative practices. Consequently, we reject any suggestion that, in this circumstance, the Title III recording was testimonial, and therefore that the Confrontation Clause affords protection against the introduction of such evidence at the defendants’ trial.”


But in a significant footnote the Third Circuit made it clear that there may be times when “participants in a recorded conversation might be aware that they are being recorded, and intentionally incriminate another individual.” Thus, the appeals court qualified its ruling with this caveat: “By no means are we establishing a categorical rule: simply because we have found some Title III recordings to be nontestimonial does not mean that no Title III recordings can qualify as such. Rather, each statement should be scrutinized on its own terms to determine whether it exhibits the characteristics of a testimonial statement. [citing Bryant that to determine whether the ‘primary purpose’ of an interrogation is ‘to enable police assistance to meet an ongoing emergency,’ which would render resulting statements nontestimonial, we objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties.’] There may be some instances, such as where the primary purpose of the declarant’s interlocutor was to elicit a testimonial statement, such that even if the declarant’s purpose was innocent, the conversation as a whole would be testimonial. Nevertheless, we are not presented with such a situation here.”


The Third Circuit then summed up its conclusion of the impact of Crawford:

“Our conclusion that the contested statements were nontestimonial under Davis compels us to reject the challenges levied by Rodriguez and Cruz under Bruton v. United States. In Bruton, the Court held that the Confrontation Clause bars the use of the confession of a nontestifying criminal defendant in a joint trial to the extent that it directly inculpates a co-defendant, though it might be otherwise admissible against the confessing defendant. ‘We have interpreted Bruton expansively, holding that it applies not only to custodial confessions, but also when the statements of the non-testifying co-defendant were made to family or friends, and are otherwise inadmissible hearsay.


However, it is clear that Bruton is no more than a by-product of the Confrontation Clause, the Court’s holdings in Davis and Crawford likewise limit Bruton to testimonial statements. Any protection provided by Bruton is therefore only afforded to the same extent as the Confrontation Clause, which requires that the challenged statement qualify as testimonial. To the extent that we have held otherwise, we no longer follow those holdings. And because, as discussed above, we have found the Title III recordings not to constitute testimonial hearsay, Bruton provides no solace for Rodriguez or Cruz.”


It is good that the constitutional landscape of Roberts’ “indicia of reliability” has been cleared, but that does not necessarily mean Crawford, and its progeny, provide clear guidance in Confrontation Clause jurisprudence. This is yet to be determined. However, we are pleased that the Third Circuit, as least, kept the door open to a case-by-case analysis of Title III recordings. The Court expressly stated they did not intend to establish a “categorical rule: simply because we have found some Title III recordings to be nontestimonial does not mean that no Title III recordings can qualify as such. Rather, each statement should be scrutinized on its own terms to determine whether it exhibits the characteristics of a testimonial statement.”  As the court pointed out, a guilty defendant, standing on a prison recreation yard knowing he is being recorded, or doing so at the direction of police, could incriminate an innocent or less culpable third party, to deflect guilt or level of culpability away from him to someone else. In such instances, where the primary purpose is to elicit a testimony statement, the incriminated individual should have the Sixth Amendment right to confront and cross-examine the individual making the incriminating statements.


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