An Interesting Application of the Confrontation Clause Under Crawford v. Washington
“In all criminal prosecutions, the accused shall enjoy the right […] to be confronted with the witnesses against him […].”
—U.S. Constitution, Sixth Amendment
While defending a client in a recent misdemeanor trial, we had an interesting situation arise. The prosecution put their first witness on the stand and submitted pictures and medical records through this witness. The speaker wasn’t an expert in any field, but the medical records she was reading from posed the danger of damaging our defense. After wrapping up her testimony, the State rested its case. Now it was the defense’s turn to present our witnesses and tell our client’s side of the story.
Trouble was, in my view the State’s case rested largely on the medical records, and the witness had no medical credentials or real training. So, it seemed to me, the great weight of the State’s evidence rested on expert conclusions contained in documents, and the State hadn’t called the expert who actually came to those conclusions. Since so much of the evidence was based on these medical records, and no one was brought in so we could question the reasoning behind these medical opinions, I saw a flaw in the State’s evidence.
Let me explain why. A judge or jury can’t convict a person just based on what is contained in a document. Why? …Because, you can’t cross-examine a document. Papers just lay on a table and say whatever they say. You can interpret them, but you can’t get them to say anything different from what’s actually written in them. And really, this is the problem with any kind of hearsay statement. Once it’s in evidence, you can’t change it, modify it, or really test its truthfulness or accuracy. Because the statement-maker isn’t actually brought into the courtroom to explain, expand upon, qualify, condition, or retract what he said in the past.
This is precisely the problem the U.S. Supreme Court addressed in Crawford v. Washington 541 U.S. 36 (2004). Essentially, Crawford holds that the government cannot secure a conviction based on “testimonial hearsay.” Testimonial hearsay is a statement that is: (1) made by someone other than the Defendant and who is not on the witness stand (i.e., repeated by another witness or in a document), (2) offered to prove one or more elements of the offense charged, (3) in a trial where the person who made the statement is not called to the stand for cross-examination.
This rule has a sound basis in Constitutional law: if a person is to be branded with a criminal record, facing loss of liberty and fines, it must be based on competent, credible evidence that is tested in “the crucible of cross-examination”. That is why the U.S. Constitution’s 6th Amendment guarantees your right to confront the witnesses against you. Cross-examination isn’t lawyer trickery: it is a fundamental instrument in the quest for truth in the courtroom. When applied with skill and care, cross-examination can separate the exaggeration and falsehood from the factual truth. It can expose motive and bias in a witness’ agenda. Perhaps most importantly, through cross-examination, the defense lawyer can remind the jury that everyone makes mistakes, and that even law enforcement and professional experts sometimes get it wrong. This also exhorts juries to observe details, weigh the evidence carefully, and not get lulled by emotional suggestions of guilt. For these reasons, and more, our Constitution guarantees that the accused must have the opportunity to confront his or her accusers.
In this case, I made a Crawford motion that the medical records be stricken from the record, since they weren’t supported by a live witness, and that the Court render a verdict of acquittal due to insufficient evidence. The Court granted the motion, and the case was over; the client was acquitted of the charge.
The trial was peculiar in terms of the events that converged leading to the resulting acquittal. Certainly, in Texas courts, it was an uncommon event, and I don’t entirely take credit for it, since the circumstances were rather odd. The prosecution was professional and didn’t play “hide the ball,” and the judge presided fairly. For whatever reason, the State’s evidence simply fell out in a problematic fashion. I brought the problem to the Court’s attention, argued fervently, and the case was thrown out. For my practice, it just reinforces an old bylaw: Always be alert for hearsay in the State’s evidence. And a corollary: Keep your caselaw on the tip of your tongue.