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					   RECENT STATE SUPREME COURT DEVELOPMENTS
      CONCERNING CRAWFORD v. WASHINGTON


                                             ARKANSAS


Beasley v. State, 370 Ark. 238, ___ S.W.3d ___ (Ark. 2007) (testimony of witness at bond-reduction
hearing who was unavailable at trial not admissible at trial because defendant’s motive for cross-
examination at bond-reduction hearing, to obtain pretrial release from jail, not substantially similar to
that at trial).


                                              ARIZONA


State v. Tucker, 160 P.3d 177 (Ariz. 2007) (expert witness who testified that duct tape used to gag
victim was consistent with roll of duct tape discovered at defendant’s home and duct tape sheath
found on knife in Tucker's bedroom could, for limited purpose of showing basis of opinion, reveal
substance of non-testifying expert's statements, since those statements were not admissible for
truth).


                                            CALIFORNIA


People v. Mendoza, 42 Cal.4th 686, 68 Cal.Rptr.3d 274, 171 P.3d 2 (Cal.2007) ( statements of
murder victim to defendant that defendant had molested her properly admitted not to prove defendant
had actually done so, but to prove defendant was aware of the accusations and to explain defendant's
state of mind and motive for killing her).


People v. Zambrano, 41 Cal.4th 1082, 163 P.3d 4, 63 Cal.Rptr.3d 297 (Cal. 2007) (admission of
testimonial statement proper based on trial court's finding, by clear and convincing evidence, that
defendant murdered declarant to prevent his testimony).


People v. Geier, 41 Cal.4th 555, 161 P.3d 104, 61 Cal.Rptr.3d 580,(Cal. 2007) (Because biologist
who conducted DNA tests did so “during a routine, non-adversarial process meant to ensure accurate
analysis,”biologist did not “bear witness” against defendant, and records of laboratory protocols
followed and the resulting raw data acquired were not accusatory, so that DNA expert could offer
opinion based on tests without testimony of biologist).


People v. Stevens, 41 Cal.4th 182, 158 P.3d 763, 775, 59 Cal.Rptr.3d 196 (Cal.2007) (Crawford not
violated by introduction of redacted statement of co-defendant because statement was redacted to
remove any reference to another person and thus contained no evidence against defendant).


People v. Cage, 40 Cal.4th 965, 155 P.3d 205, 56 Cal.Rptr.3d 789 (Cal. 2007) (because victim's
statements to deputy, both in hospital emergency room, and later on tape at sheriff's station, were
made in response to focused police questioning whose primary purpose, objectively considered, was
not to deal with an ongoing emergency, but to investigate the circumstances of a crime, statements to
deputy were testimonial; because primary purpose of the physician's general question to victim,
“what happened,” when objectively considered, was not to obtain proof of a past criminal act, or the
identity of the perpetrator, for possible use in court, but to deal with a contemporaneous medical
situation that required immediate information about what had caused the victim's wound, statement to
doctor was not testimonial).


People v. Giles, 40 Cal.4th 833, 152 P.3d 433, 55 Cal.Rptr.3d 133 (Cal.2007) (rejecting argument
that defendant forfeits confrontation right only when engaging in conduct preventing witness from
testifying with intent to prevent testimony, and finding defendant forfeited confrontation right when
he committed crime charged, homicide, that caused victim's unavailability to testify at trial).


                                             COLORADO


Vasquez v. People, 173 P.3d 1099 (Colo. 2007) (“where a court finds that (1) the witness is
unavailable; (2) the defendant was involved in, or responsible for, procuring the unavailability of the
witness; and (3) the defendant acted with the intent to deprive the criminal justice system of evidence,
the defendant then forfeits his right to confront that witness at any proceeding in which the witness's
statements are otherwise admissible”).


Coleman v. People, 169 P.3d 659 (Colo. 2007) (admission at trial of Denver Police Forensic
Laboratory report identifying substance found near defendant to be cocaine and provided total weight
of cocaine properly admitted without testimony of lab technician because defendant had effectively
waived testimony by failing to timely request testimony as required by Colorado law).


Hinojos-Mendoza v. People, 169 P.3d 662, 667 (Colo. 2007) (lab report prepared at direction of
police, sole purpose of which was to analyze substance found in defendant's vehicle in anticipation of
criminal prosecution, was testimonial, but defendant waived confrontation right based on statute
requiring that at least ten days prior to trial defendant request that lab technician testify).


People v. Moreno, 160 P.3d 242 (Colo. 2007) (Although Crawford recognizes that a defendant may
forfeit his confrontation right by causing her unavailability as a witness, in this case the People failed
to prove that the defendant had any intent to prevent or dissuade the child from witnessing against
him).


Arteaga-Lansaw v. People, 159 P.3d 107 (Colo. 2007) (victim’s report to police of a crime that had
taken place days, if not weeks, before, made when she may have been upset, but not when she was
being victimized or threatened clearly testimonial).


                                           CONNECTICUT


State v. Slater, 285 Conn. 162, ___ A.2d ___ (Conn. 2008) (victim’s statement to two persons on
street that she had been raped by black man with a knife was not testimonial because when she made
the statement, she was walking down street at fast pace crying and screaming; she was seeking aid,
not relating information; the persons to whom she spoke were not police officers and did not seek to
investigate or elicit information from her about attack; and victim's statement was not made or
obtained with any degree of formality, solemnity or reflection).


State v. Arroyo, 284 Conn. 597, 935 A.2d 975 (Conn. 2007) (primary purpose of interviews of child
sexual abuse victim was to provide medical assistance to victim given that: clinic pairs forensic
interviewer with medical care provider; medical care provider relies upon forensic interviewer's work
in examining child; there are repeated communications and consultations between medical care
provider and forensic interviewer, and forensic interviewer participates in ultimate diagnosis and
formulation of treatment plan for child).


State v. Randolph, 284 Conn. 328, 933 A.2d 1158 (Conn. 207) (declining to decide whether
Crawford applies to preliminary probable cause hearing because error, if any, in admitting allegedly
testimonial document was harmless beyond a reasonable doubt).


                                            DELAWARE


Jones v. State, ___ A.2d ___, 2007 WL 4327037 (Del.Supr. 2007) (casual remarks declarant made to
girlfriend and statements declarant made in furtherance of the conspiracy were not testimonial).


Nalley v. State, 935 A.2d 256 (Del.Supr. 2007) ( unsolicited statements by bystander to police
officers who arrived at scene and were assessing situation and determining any possible danger were
non-testimonial).


                                    DISTRICT OF COLUMBIA


Lewis v. U.S., 938 A.2d 771 (D.C. 2007) (initial statements by victim to police recounting basic facts
of assault were non-testimonial because primary purpose of questioning was to enable officer to
respond most effectively to “ongoing emergency,” but more detailed account provided short time
later was testimonial because at that time emergency had dissipated).
Callaham v. U.S., 937 A.2d 141 (D.C. 2007) (Confrontation Clause bars prosecution from
introducing at trial chemist’s report containing chemical analysis without calling chemist to testify in
person, unless chemist was unavailable and defendant had prior opportunity to cross-examine
chemist; provision granting defendant right to subpoena chemist “for cross-examination at trial” does
not satisfy Confrontation Clause because Crawford unqualifiedly insists on declarant's unavailability
as precondition to admitting testimonial hearsay).


Long v. U.S., ___ A.2d ___, 2007 WL 3374941 (D.C. 2007) (declarant’s responses to police officer’s
questions, “What happened?” and “Who did this to you?” not testimonial because questions were
necessary to enable officer to respond to emergency presented by declarant who flagged officer down
while trying to stop the “gaping wound on his face” from bleeding more profusely; questions and
were not part of structured, formal investigation into past events).
                                              FLORIDA


State v. Lopez, ___ So.2d ___, 2008 WL 89979 (Fla. 2008) (statement victim made to police officer
testimonial because there was no ongoing emergency at time witness was questioned; discovery
deposition of victim did not satisfy requirement of opportunity for cross-examination because rule
permitting deposition was not designed as opportunity to engage in adversarial testing of evidence;
and was not customarily used for purpose of cross-examination, but to learn what testimony will be
and attempt to limit it; deposition not intended as opportunity to perpetuate testimony for use at trial;
and defendant is not entitled to be present during deposition).


                                               HAWAII


State v. Fields, 115 Hawai'i 503, 168 P.3d 955 (Hawaii 2007) (where hearsay declarant testified at
trial and was cross-examined, degree of memory loss did not deny defendant right of confrontation
and Crawford analysis inapplicable to declarant's out-of-court statements to police officer).


                                                IDAHO


State v. Hooper, ___ P.3d ___, 2007 WL 4472263 (Idaho 2007) (videotaped statements of child
complainant were testimonial since primary purpose of interview was to establish or prove past
events potentially relevant to later criminal prosecution, rather than to meet child's medical needs).


State v. Rose, 171 P.3d 253 (Idaho 2007) (because the Confrontation Clause does not apply to
probation revocation hearing, a probationer may be denied confrontation rights for good cause).


                                              ILLINOIS
People v. Stechly, 225 Ill.2d 246, 870 N.E.2d 333 (Ill. 2007) (would be unfair to hold defendant
waived constitutional confrontation claim by failing to raise it before Crawford was decided, since his
claims are based on a rule which was only announced during the pendency of his appeal to this court;
finding that defendant forfeited confrontation right requires proof that defendant intended by his
actions to procure witness' absence; in determining whether statements are testimonial, focus is on
intent of questioner in eliciting the statement, relying on objective circumstances, not the officer’s
subjective intent).


People v. Waid, 221 Ill.2d 464, 851 N.E.2d 1210 (Ill. 2006) (A discharge hearing to determine
whether defendant who is unfit to stand trial should be acquitted or found not guilty by reason of
insanity is not a criminal prosecution to which the Confrontation Clause and Crawford do not apply).


People v. Patterson, 217 Ill.2d 407, 841 N.E.2d 889 (Ill. 2005) (Crawford violation to admit grand
jury testimony of witness who did not testify at trial, but error harmless beyond a reasonable doubt).


People v. Cookson, 215 Ill.2d 194, 830 N.E.2d 484 (Ill.2005) (Illinois statute permitting introduction
of out of court statement made by child under 13 who is victim of physical or sexual attack if court
finds sufficient safeguards of reliability because child must testify at the proceeding and thus must be,
as Crawford requires, “present in court to defend or explain [the statement]”).


                                              INDIANA


Reyes v. State, 868 N.E.2d 438 (Ind. 2007) (Because probation revocation hearings are not criminal
trials, the Sixth Amendment right to confrontation is not applicable to them).


                                                IOWA


State v. Bentley, 739 N.W.2d 296 (Iowa 2007) (although information gathered from child in child-
friendly, safe environment could have been very useful in the treatment of her well-documented
psychological conditions, statements were testimonial because of extensive involvement of police in
interview and because those questioning her intended to investigate past alleged crimes and prevent
future crimes).


                                              KANSAS


State v. Brown, 173 P.3d 612 (Kan. 2007) (statements made at scene shortly after shooting by
unidentified emotional bystander to one of approximately 200 other bystanders were not testimonial).


State v. Araujo, 285 Kan. 214, 169 P.3d 1123 (Kan. 2007) (defendant’s confrontation rights not
violated by admission of declarant’s statements, not for the truth of the matter asserted, but for
limited non-hearsay purpose of explaining officers' actions of approaching defendant, who was
believed to be suspect in assault reported by 911 caller, which led to discovery of drugs).


State v. Henderson, 284 Kan. 267, 160 P.3d 776 (Kan. 2007) (primary purpose of child victim's
interview by social worker and detective was to establish past events potentially relevant to a later
criminal prosecution of defendant given that defendant was focus of interviewers even before
interview began, interviewers were government employees, and detective was continuously involved
in process from beginning).


State v. Stano, 284 Kan. 126, 159 P.3d 931 (Kan. 2007) (Defendant's right of confrontation not
violated when trial court admitted testimonial written statement and preliminary-hearing testimony of
witness who was unavailable at trial because defendant had opportunity to cross examine witness at
preliminary hearing, since defendant's interest and motive in questioning witness at preliminary
hearing and at trial were similar).


                                            KENTUCKY


Rankins v. Commonwealth, 237 S.W.3d 128 (Ky. 2007) (where officer responded to domestic
violence call arrived at scene only minute or two later, although victim was crying, upset, and visibly
in pain, victim’s description of defendant’s assault, made in response to officer’s question about what
happened, were testimonial because they were account of what had happened rather than what was
happening).


Heard v. Commonwealth, 217 S.W.3d 240 (Ky. 2007) (officer’s testimony repeating what victim had
told him about attack defendant made on her were testimonial because the concerned events that had
already occurred and concerned no ongoing emergency).


                                        MASSACHUSETTS


Commonwealth v. Burgess, 450 Mass 422, 879 N.E.2d 63 (Mass. 2008) (Because victim's statements
to officer several months prior to murder were made in response to police interrogation not meant to
secure volatile situation or procure needed medical attention, they were per se “testimonial” and
inadmissible under Confrontation Clause).


Commonwealth v. Lao, 450 Mass. 215, 877 N.E.2d 557 (Mass. 2007) (although victim’s statements
to daughter reporting defendant's alleged attempt to run over her with vehicle were not testimonial,
victim’s subsequent statements in 911 call and to responding officer were testimonial since at time
she was not in imminent personal peril, and admission of statements resulted in substantial risk of
miscarriage of justice).


                                            MICHIGAN


People v. Shepherd, 472 Mich. 343, 697 N.W.2d 144 (Mich. 2005) (admission of transcript of
proceeding in which non-testifying declarant pleaded guilty of the crime of subornation of perjury
violated defendant's confrontation right but was harmless error).


People v. Deshazo, 469 Mich. 1044, 679 N.W.2d 69 (Mich. 2004) (statement by non-testifying co-
defendant that defendants hired him to kill victim is not barred by Crawford because it is not
testimonial).


                                           MINNESOTA


State v. Krasky, 736 N.W.2d 636 (Minn. 2007) (statements made by child victim of sexual abuse not
testimonial because they were made during assessment by nurse conducted at children's hospital
rather than at a law enforcement center, with no law enforcement officer present, and there was no
indication that nurse was acting as proxy for law enforcement; and primary purpose of statements
victim made to nurse was to assess and protect child’s health and welfare).


State v. Warsame, 735 N.W.2d 684 (Minn. 2007) (where assault victim was struck on head and
choked, attempted to call 911 but was unable to do so because telephone lines in her home had been
cut, walked to nearby police station, with injuries and while in distress, and while defendant still at
large, victim’s primary purpose for talking to police was protection, not prosecution of assailant,
making her initial, volunteered statement non-testimonial; responses to subsequent questioning also
non-testimonial since they were directed to on-going emergency).
                                             MONTANA


State v. Sanchez, ___ P.3d ___, 2008 WL 273926 (Mont. 2008) (note addressed by homicide victim
“[t]o whom it concerns[,]” stating reason for writing note was that “if I unexspetly [sic] become sick
and on the edge of death, and perhaps I die no [sic] you will have some answers,” indicates that note's
purpose was to explain her untimely death or poisoning, not to prevent or mitigate future harm, and
thus was testimonial, but note was admissible because defendant’s wrongdoing caused victim’s
unavailability at trial).


                                        NEW HAMPSHIRE


State v. Connor, 937 A.2d 928 (N.H. 2007) (where expert police witness testified that his opinion
concerning fingerprint comparison is formed following analysis, comparison, and evaluation of
latent print to known print, but methodology of police laboratory requires verification by second
technician before expert can issue report and offer opinion, second opinion of verifying technician
was offered for truth of statement and not simply as aid in jury’s evaluation of testifying expert’s
opinion).


State v. O'Maley, 932 A.2d 1 (N.H. 2007) (in DWI case, blood sample collection form prepared by
technician who drew defendant’s blood not testimonial: because it did not accuse defendant of
wrongdoing and did not describe any of defendant’s past conduct, but merely gave information about
technician and about draw; because it was not requested by law enforcement, but was required by
pertinent administrative rules; and because it was not “weaker substitute for live testimony at trial,”
since, if technician had testified at trial, she “would merely have authenticated the document”).


                                           NEW MEXICO


State v. Walters, 168 P.3d 1068 (N.M. 2007) (statements made by co-defendants during course of
their interrogation were testimonial since the police were attempted to discover cause of baby’s death
and obtain inculpatory statements from each of the codefendants).


                                            NEW YORK


People v. Nieves-Andino, 9 N.Y.3d 12, 872 N.E.2d 1188, 840 N.Y.S.2d 882 (N.Y. 2007) (officer’s
brief solicitation of pedigree information and information about the attacker's identity not testimonial
because it was part of reasonable efforts to assess what had happened to cause victim’s injuries and
whether there was any continuing danger to the others in the vicinity, rather than to learn what
happened in the past).


People v. Bradley, 8 N.Y.3d 124, 862 N.E.2d 79, 830 N.Y.S.2d 1 (N.Y. 2006) (when police officer,
responding to a 911 call, was met by emotionally upset woman smeared with blood, asking “what
happened” was normal and appropriate way to begin immediate task of deciding what, if any, action
was necessary to prevent further harm, and not inquiry designed to elicit testimonial statement about
past event).
People v. Pacer, 6 N.Y.3d 504, 847 N.E.2d 1149, 814 N.Y.S.2d 575 (N.Y. 2006) (Confrontation
Clause violated by acceptance in evidence of affiant's sworn statement that notice of revocation of
driver’s license had been mailed to defendant, which was evidence of critical element of offense, i.e.,
that defendant had knowledge of the revocation, because it eliminated defendant's opportunity to
contest the facts set forth in the affidavit).


People v. Goldstein, 6 N.Y.3d 119, 843 N.E.2d 727, 810 N.Y.S.2d 100 (N.Y. 2005) (“statements
made to psychiatrist by those she interviewed in formulating opinion concerning defendant’s mental
condition were testimonial because psychiatrist was expert retained to testify for the People whom, it
could be inferred, knew they were responding to questions from an agent of the State engaged in trial
preparation).


                                       NORTH CAROLINA


State v. Raines, 362 N.C. 1, 653 S.E.2d 126 (N.C. 2007) (because detention center incident reports
were not prepared for use in later legal proceedings, but as internal documents concerning
administration of detention center, they and the statements they contained were not testimonial and
could be admitted without violating defendant’s confrontation rights).


State v. Lewis, 361 N.C. 541, 648 S.E.2d 824 (N.C.2007) (where assault occurred hours before
victim was discovered, victim's neighbors were with her for period of time before police officer
arrived, and primary purpose of interrogation of victim was to establish or prove past events
potentially relevant to later prosecution, victim’s statements were testimonial; that defendant's
location was unknown at the time of interrogation did not in and of itself create ongoing emergency)


                                                OHIO


State v. Crager, 116 Ohio St.3d 369, 879 N.E.2d 745 (Ohio 2007) (although it could have been
reasonably expected that DNA reports would be used in criminal trial, they were not testimonial
because they were prepared in ordinary course of regularly conducted business).


State v. Siler, 116 Ohio St.3d 39, 876 N.E.2d 534 (Ohio 2007) (rejecting argument that a child's
statements are necessarily non-testimonial when the child would not be able to understand that the
statements would be used in a later criminal proceeding, and concluding that age of declarant is not
determinative of whether statement made in response to police interrogation is testimonial).


                                           OKLAHOMA


Thompson v. State, 169 P.3d 1198 (Okla.Crim.App. 2007) (testimony witnesses gave at defendant’s
preliminary hearing admissible at trial when witnesses were unavailable because defense counsel's
cross examination of witnesses at preliminary hearing was full and substantial).


                                         RHODE ISLAND
State v. Ramirez, 936 A.2d 1254 (R.I. 2007) (to satisfy requirement of Confrontation Clause, non-
testimonial statement must manifest an “indicia of reliability”).


State v. Pompey, 934 A.2d 210 (R.I. 2007) (Crawford does not apply to probation violation hearing
because it is not a criminal prosecution within the meaning of the Sixth Amendment).


                                         SOUTH DAKOTA


State v. Tiegen, ___ NW2d ___, 2008 WL 152449 (S.D. 2008) (defendant's Sixth Amendment rights
not violated when co-conspirator’s statements were admitted at trial since statements made by co-
conspirator in furtherance of conspiracy are not testimonial).


State v. Selalla, ___ NW2d ___, 2008 WL 58968 (S.D. 2008) (trial court acted within its discretion in
ruling that defendant’s introduction of exculpatory portions of declarant’s hearsay statement to police
officer resulted in waiver of confrontation right and enabled State to “complete picture” by eliciting
other inculpatory portions of statement).


                                               TEXAS


Vinson v. State, ___ SW3d ___, 2008 WL 141916 (Tex.Crim.App. 2008) (because officer had
removed defendant prior to interviewing victim about details of assault, and no other factors indicated
emergency situation was still in progress, victim’s statements to officer were testimonial and thus
inadmissible under Crawford).


                                            TENNESSEE


State v. Lewis, 235 S.W.3d 136 (Tenn. 2007) (permitting expert who did not perform DNA analysis
herself to testify to her analysis of work performed by a colleague did not deny defendant’s
confrontation rights because her testimony, although based upon hearsay contained within her
colleague’s data, did not include the data itself or any out-of-court statement made by her colleague).


                                             VIRGINIA


Anderson v. Commonwealth, 650 S.E.2d 702 (Va. 2007) (certificate of analysis of drug not barred by
Confrontation Clause because analyst testified; Confrontation Clause did not bar statutory
presumption that Department of Forensic Science maintained proper chain of custody of drug
samples because presumption was relevant to admissibility of certificate and not to its content, and
thus was not testimonial).


Hodges v. Commonwealth, 272 Va. 418, 634 S.E.2d 680 (Va. 2006) (admission of victim's written
confession to police implicating defendant in marijuana distribution conspiracy did not violate
Confrontation Clause because confession was not offered to prove truth of matter asserted but rather
to establish defendant's motive for murder of victim).


                                          WASHINGTON


State v. Ohlson, 162 Wash.2d 1, 168 P.3d 1273 (Wash. 2007) (statements in response to officer's
interrogation were non-testimonial because, although declarant was not “speaking about events as
they were actually happening,” the statements were made within minutes of assault and
contemporaneously with events described; there was no way to know, and every reason to believe,
that defendant might return to scene and escalate behavior; police could not “forcibly prevent”
defendant from harming declarant; and declarant’s statements to officer Gray were “a call for help
against bona fide physical threat”).


State v. Benn, 161 Wash.2d 256, 165 P.3d 1232 (Wash. 2007) (admission at second trial of testimony
witness gave at first trial did not violate the Confrontation Clause because defendant had “opportunity
and similar motive” to cross-examine witness in first trial, despite defendant’s alleged belief that
witness would kill or harm his family if defendant cross-examined him).


State v. Mason, 160 Wash.2d 910,162 P.3d 396 (Wash. 2007) (significant lapse of time between the
emergency and victim’s report to police officer, combined with fact that statements were made miles
away from scene of emergency in police station made statements testimonial; however, defendant
forfeited confrontation right by causing victim’s unavailability by killing him, even though he
engaged in conduct without intent to prevent testimony).


State v. Kronich, 160 Wash.2d 893, 161 P.3d 982 (Wash.2007) (state Department of Licencing
certification describing status of person's driving privilege not testimonial).


                                            WYOMING


Szymanski v. State, 166 P.3d 879 (Wyo. 2007) (Statements declarant made in interview by fire
inspector were testimonial because interview was part of investigation into cause of fire that had
already been extinguished and inspector was not seeking to determine what was happening but rather
what had happened).