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Say That To My Face. Face to Face. That is the Law

Seattle, Oak Harbor, Whidbey Island Criminal Lawyer Discusses the Right to Confrontation. Crawford v. Washington: not just another Thurston County assault – it is now the essence of the Sixth Amendment.

Two men (hereinafter co-conspirators “A” and “B”) allegedly conspired to rob a drug dealer and then either A or B ended up shooting the drug dealer in the chest… drug dealer dies… A and B are charged with murder. Apparently co-conspirator “B” made statements against “A” to the police. “B” also made statements against “A” in the presence of co-conspirator B’s sister (hereinafter sister “C”). “B” allegedly told “C” that “B” told A “not to do it” and “he shot that kid.” At trial the prosecutors offered “B’s” above statements against A through the testimony of police and “C” into evidence. That is, “C” told the jury that “B” said to “A” to “not do it.” This makes A look bad… to say the least.

The general rule is that a statement offered to prove the truth of the matter asserted is inadmissible at trial. That is known as “hearsay.” So, if the prosecutor offers “B’s” statement against “A” through “C” in order to prove that A “shot that kid” then such a statement, under the general rule forbidding hearsay, should be inadmissible. The policy behind hearsay rule is to prevent untrustworthy evidence from being admitted; to prevent the jury from being exposed to evidence that is inherently questionable or unreliable. Ever play the game telephone while growing up? The game always starts with a simple phrase or message. Then after the message is passed through others, the message always seems to come out totally distorted on the other end. That is one of many reasons why the rules of evidence forbid the admission of hearsay.

However, there are many MANY exceptions to the hearsay rule. The rules of evidence can be very complicated. One exception (or exemption as some professors may call it) is an admission by a party-opponent. For purposes of this exception an “admission” is very broad–basically anything that a party says. One form the admission by a party opponent exception is when one co-conspirator of a party says something during the conspiracy–a co-conspirator statement. Therefore, in the Massachusetts case, it is possible that “C” could, under the rules of evidence, testify before the jury that “B” told “A” to “not do it” under the admission by a party opponent exception to the hearsay rule.

Notwithstanding the applicability of a hearsay exception, the Sixth Amendment right to confrontation may still forbid such statements. In Crawford v. Washington, the defendant allegedly stabbed a guy (alleged victim) that attempted to rape his wife. Prior to trial, during the police investigation of the stabbing, the defendant’s wife gave a recorded statement to police during an interrogation. The wife apparently made statements that tended to show that her husband, the defendant, did not act in self-defense when he stabbed the alleged victim (or attempted rapist). At trial, the state could not call the wife to the stand to testify because the defense asserted the marital privilege (another rule of evidence). Therefore, the state offered into evidence the recorded statement of the wife (which is also hearsay, but is admissible under the Washington rules of evidence via another exception: declarant unavailable-statement against interest). The defendant was convicted, but then on appeal contended that his Sixth Amendment right to confrontation was violated. The case went all the way up to the Supreme Court.

The Supreme Court basically held that, under the Sixth Amendment Confrontation Clause testimonial hearsay is inadmissible unless the witness is unavailable and the defendant had the prior opportunity to cross examine the witness. So, basically, defendant’s have the right cross examine witnesses, face to face, in court before the eyes of the jury, unless the witness is unavailable and the defendant was able to previously cross examine the witness.

So here, with this Massachusetts case, the case got overturned because it was unconstitutional for “C” or law enforcement to testify that “B” said something out of court that incriminated “A” when “A” was never able to cross-examine “B.” The general rule is basically that a witness’s statements are inadmissible unless the witness comes into court and says what he or she has got to say to the defendant’s face and before the eyes of the jury.

The attorneys at Platt & Buescher will thoroughly analyze your case under the rules of evidence and will determine the constitutionality of evidence offered by the prosecutors. If you have a criminal case pending contact our office today to set up a consultation.