Case Law Update: 2011-2014 Cumulative Edition

Facts: Defendant was charged with a drug offense. He was arrested in his car. When he was arrested, a BlackBerry fell out of his lap. At trial, the trial court admitted text messages from the BlackBerry that were mostly incoming messages. Defendant objected based on hearsay and confrontation grounds, and that there was no proof that he owned the BlackBerry.

Holding: The State claims the BlackBerry texts were admissible because there is a “logical inference” that Defendant owned the phone since he possessed it, and that the texts are admissions of a party opponent. This argument is flawed, however, because the State failed to establish that the outgoing messages were written by Defendant. For a statement to be admitted as an admission of a party opponent, the party seeking to admit the evidence must show that the opposing party made the statement. Here, the State simply argues that there is a “logical inference” that Defendant owned the phone. However, this is inconsistent with the requirement that the State lay a proper foundation for authentication of text messages. To admit text messages, the State was required to present some proof that the messages were actually authored by the person who allegedly sent them. Here, the State did not even attempt to establish who owned the BlackBerry. The fact that Defendant possessed the phone at the time of his arrest is insufficient to establish that Defendant sent the text messages, especially those from earlier days before the arrest. Furthermore, most of the texts presented by the State were the incoming text messages. These could be adoptive admissions if it could be proven that Defendant replied to them, but the State often did not even present the outgoing replies. It is clear that the State was using incoming messages of unknown, unidentified third parties to convict Defendant. This was hearsay and denied him his right to confront and cross-examine witnesses.
E.G.D. v. S.L.D., No. ED94767 (Mo. App. E.D. 4/5/11):

Holding: In order of protection case, Mother’s and Police Officers’ testimony about what alleged Child sex victim told them about Defendant sexually abusing her was hearsay and not admissible without a reliability hearing as required by Sec. 491.075(1) and evidence that Child was unavailable or would suffer emotional or psychological harm as a result of testifying. Order of protection reversed and case remanded.
Woods v. State, No. ED94540 (Mo. App. E.D. 2/15/11):

Where State made no effort to secure out-of-state Witness’ attendance at trial under Uniform Law to Secure Attendance of Witnesses, it violated Defendant’s confrontation rights to admit Witness’ deposition at Defendant’s trial.

Facts: Defendant was charged with robbery and burglary of Witness-Victim (Witness). Before trial, the State took a video deposition of Witness. At time of trial, Witness was attending medical school in Pennsylvania. The trial court admitted Witness’ deposition at trial over Defendant’s objection that this violated his right to confront and cross-examine witnesses.

Holding: Rule 25.14 allows the trial court to order a deposition to preserve testimony upon motion by the State. However, it does not appear from the record that this Rule was followed; there is nothing indicating a hearing was held on this, or that there was any finding by the trial court that this was necessary. However, the dispositive issue here is whether the admission of the video deposition violated Defendant’s confrontation rights. An exception to the right to confront witnesses is if the State shows a witness is unavailable, has testified before, and was subject to cross-examination. If the State meets its burden of showing the witness is “otherwise unavailable,” a deposition of the witness can be taken and used at trial. Rule 25.16(b)(4) provides that a deposition can be used if “the state has made a good faith effort to obtain the presence of the witness at … trial, but has been unable to procure” their attendance. Here, the State argued it could not produce Witness at trial because it doesn’t have out-of-state subpoena power. But both Missouri and Pennsylvania allow for out-of-state subpoenas under the Uniform Law to Secure Attendance of Witnesses, Secs. 491.400 to 491.450. Here, the State made no effort to use this law and no effort to otherwise get Witness to appear. Instead, the State claims Witness was unavailable because he was attending medical school in Pennsylvania. Such circumstances are not sufficient to establish unavailability of a witness within the meaning of Rule 25.16(b)(4). Convictions reversed and remanded for new trial.
State v. Reed, 2014 WL 4457266 (Mo. App. S.D. Sept. 10, 2014):

Holding: Where preliminary hearing Witness died before trial and even though the preliminary hearing was not recorded, Defendant’s confrontation rights were not violated by State calling a different witness to testify to what Witness had said at the preliminary hearing.

Discussion: Under the Sixth Amendment Confrontation Clause, prior preliminary hearing testimony and other ‘testimonial’ proof is inadmissible unless the witness is unavailable and the Defendant had a prior opportunity for cross-examination. Defendant had that at the preliminary hearing. He does not contend the opportunity to cross-examine there was “inadequate.” Therefore, testimony about what Witness testified to at preliminary hearing did not violate Confrontation Clause.
State v. Benitez, 2013 WL 2474511 (Mo. App. S.D. June 10, 2013):

Holding: Allowing child-victim to testify behind a screen so that child could not see Defendant, without a specific finding of necessity for this, violated Defendant’s 6^th Amendment confrontation rights (but was harmless under facts of case).

Discussion: Maryland v. Craig, 497 U.S. 836 (1990), allows face-to-face confrontation to be dispensed with but only if the State makes an adequate showing of necessity to protect the child from trauma in testifying. The requisite finding of necessity must be a case-specific one. The trial court must find that the emotional trauma suffered by the child in the presence of defendant is more than de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify. Here, the trial court made none of the case-specific findings required by Craig before allowing the screen. The trial court relied on a generalized finding that because of the child’s young age and nature of the charge, that the screen was permissible. But Craig does not allow this generalized finding. However, here the evidence was harmless because the child’s testimony was cumulative of other evidence, and Defendant chose not to cross-examine child at all which indicates that child’s statements contained no important infirmities.
State v. Tindle, 2013 WL 1195426 (Mo. App. S.D. March 25, 2013):

Holding: In sex abuse case, statements made by Child who was 14 years old to a CAC interviewer and police officer were not admissible under the hearsay exception in Sec. 491.075 because Child was not “under the age of 14” as required by the statute; however, this was not plain error where defense counsel failed to object on this basis, and the Child and interviewers were cross-examined at trial.
State v. Crews, 2013 WL 4418844 (Mo. App. W.D. August 20, 2013):

Medicaid-Case Manager’s testimony that Victim-Wife told him she had been beaten by Defendant-Husband was hearsay in domestic abuse trial, and not admissible under physician exception to hearsay rule because Medicaid-Case Manager was not a doctor and the statements were not made to him for diagnosis or treatment purposes.

Facts: Victim-Wife received Medicaid for various health problems, and was assigned a Medicaid caseworker/administrator to visit her home to see if she qualified for additional services. When Case-Manager visited the home, he noticed that Victim-Wife had a black eye and bruises, and he asked what happened. She said Defendant-Husband beat her and she wanted a divorce. Case-Manager took Victim-Wife to police station to make a report. Defendant-Husband was then charged with domestic abuse. At trial, Victim-Wife refused to testify, and provided a letter to the defense recanting her statements. The State’s only evidence, received over Defendant’s hearsay and confrontation objection, was the testimony of the Case Manager of what Victim-Wife told him.

Holding: Hearsay is out-of-court statements used to prove the truth of the matter asserted in the statements. Here, Case Manager’s testimony about what wife told him is hearsay, in that it is being used for its truth, i.e., that Defendant-Husband caused Victim-Wife’s injuries. The State contends that Case Manager’s testimony is admissible under the physician exception to hearsay. However, that exception is narrow, and can only be used to cover statements made to a physician in the course of diagnosis and treatment. Here, Case Manager is not a physician, and even if he were, the statements were not made in the course of diagnosis or treatment, but rather were made for the purpose of identifying Defendant-Husband as the perpetrator. Since this was the only evidence of guilt, Defendant was prejudiced by its admission. Reversed for new trial.
* Williams v. Illinois, ___ U.S. ___, 132 S.Ct. 1222 (2012):

Holding: In a plurality opinion, Court holds that State’s expert does not violate Confrontation Clause by discussing other experts’ testimonial statements if the statements themselves are not admitted as evidence; thus, State DNA expert could testify about a report that Defendant’s DNA profile “matched” the profile taken from sexual assault victim; since the “match” was made before Defendant was identified or arrested, the purpose of the “match” was to catch a suspect still at large and not for the purpose of obtaining evidence to be used against Defendant, and “[i]t has long been accepted than an expert witness may voice an opinion based on facts concerning the events at issue in a particular case even if the expert lacks first-hand knowledge of those facts”; although the expert vouched for the “match” of the profile, the expert did not vouch for the quality of the lab work performed and the lab report was not introduced into evidence.
* Hardy v. Cross, ___ U.S. ___, 90 Crim. L. Rep. 358 (U.S. 12/12/11):

Holding: In a habeas case where only pre-Crawford v. Washington, 541 U.S. 36 (2004), law applied, habeas relief should not have been granted to sex offense petitioner on grounds that State did not try hard enough to locate the complaint before declaring her unavailable and admitting her prior testimony.
* Bullcoming v. New Mexico, ___ U.S. ___, 2011 WL 2472799 (U.S. 6/23/11):

Holding: Confrontation Clause prohibits prosecution from introducing lab report through in-court testimony of an analyst who did not personally conduct the test.
* Michigan v. Bryant, ___ U.S. ___, 88 Crim. L. Rep. 629, 131 S.Ct. 1143 (U.S. 2/28/11):

Holding: In determining whether police interrogation of a crime victim is to enable police to meet an “ongoing emergency” or instead “to prove past events relevant a later criminal prosecution,” courts must consider the purpose that reasonable participants would have had as ascertained from their statements and actions, and on additional factors such as whether the threat to the victim has been neutralized, the type of weapon used, the medical condition of the victim, and the degree of information the police elicit. Where police found dying shooting victim lying next to his car and he said someone named Rick shot him, this was interrogation in response to an “ongoing emergency” and, thus, its admission after victim died did not violate confrontation clause.
U.S. v. Cameron, 699 F.3d 621 (1^st Cir. 2012):

Holding: Even if child pornography reports generated by an online service provider Yahoo! were “business records,” they were prepared with the primary purpose of establishing or proving past events relevant to criminal prosecution and thus were “testimonial” for Confrontation Clause purposes.
U.S. v. Meises, 89 Crim. L. Rep. 257, 2011 WL 1817855 (1^st Cir. 5/13/11):

Holding: Even though Officer actually participated in the drug sting, this did not make his “overview testimony” about the sting about which he had no personal knowledge admissible; this was still hearsay and inadmissible lay opinion testimony.
U.S. v. Taylor, 2014 WL 814861 (2d Cir. 2014):

Holding: Redaction of a co-defendant’s confession was not sufficient to protect Defendant’s Confrontation Clause rights where jurors would be able to infer that the purpose of the redaction was to corroborate a cooperating co-defendant’s testimony against the rest of the group.
Eley v. Erickson, 2013 WL 1405923 (3d Cir. 2013):

Holding: Admission of witness’ statement that a non-testifying co-defendant admitted to shooting the victim but “it was the other two’s idea” violated Defendant’s confrontation rights under Bruton.
Adamson v. Cathel, 88 Crim. L. Rep. 780, 2011 WL 692977 (3d Cir. 3/1/11):

Holding: Trial court was required to give a limiting instruction under Tennessee v. Street, 471 U.S. 409 (1985) when Defendant was impeached using the co-defendant’s confession after Defendant claimed his own confession was fabricated by police; Defendant’s confrontation rights were violated without the limiting instruction.

U.S. v. Cone, 93 Crim. L. Rep. 95 (4^th Cir. 4/15/13):

Holding: (1) Contents of emails are not necessarily admissible under “business records” exception to hearsay without further analysis since email is a more casual form of communication than other records usually kept in the course of business such that email may not be assumed to have the same degree of accuracy and reliability; and (2) Materially altering a good that bears a genuine trademark and passing it off as a more expensive product is not prohibited by the criminal trademark counterfeiting statute, 18 USC 2320.
U.S. v. Williams, 2011 WL 184541 (4^th Cir. 2011):

Holding: Admission of a stipulation as to weight and proof of a controlled substance, over Defendant’s objection, violated his 6^th Amendment right to confrontation.
U.S. v. Duron-Caldera, 94 Crim. L. Rep. 385 (5^th Cir. 12/16/13):

Holding: (1) Plurality 4-4-1 opinion in Williams v. Illinois, __ U.S. __ (U.S. 2012) is not binding as precedential authority because there was no “narrowest ground” that was supported by a majority of justices; (2) 5^th Circuit adopts “primary purpose” test of dissenters, and concludes that the Gov’t failed to prove that an affidavit which it admitted was obtained for the primary purpose of an administrative investigation rather than for purposes of a criminal prosecution; thus, affidavit was “testimonial” and required cross-examination under Crawford.
U.S. v. Powell, 94 Crim. L. Rep. 121 (5^th Cir. 10/3/13):

Holding: Even though Officer-Witness was allowed to testify to non-testifying co-defendant’s statements about her whereabouts at time of crime because this was only about her conduct, it violated Bruton for Gov’t to ask Defendant when he testified to explain the co-defendant’s statements.
U.S. v. Nelson, 93 Crim. L. Rep. 646 (6^th Cir. 8/7/13):

Holding: Officer should not have been permitted to testify to what anonymous caller had said in 911 call where caller had given identifying description of suspect because this was inadmissible hearsay.
U.S. v. Jordan, 2014 WL 292396 (7^th Cir. 2014):
Holding: Trial court erred in admitting Officer’s hearsay evidence during supervised release revocation hearing without balancing Defendant’s confrontation rights against Gov’t’s stated reasons for denying them.
Cross v. Hardy, 88 Crim. L. Rep. 511, 2011 WL 102587 (7^th Cir. 1/13/11):

Holding: Where after Defendant won a retrial the prosecution made only “half-hearted” efforts to find the victim and instead used transcript of victim’s prior testimony at new trial, this violated Defendant’s confrontation rights, even though prosecution contacted victim’s family and had investigator do some looking to try to find victim.


U.S. v. Causevic, 2011 WL 1517911 (8^th Cir. 2011):

Holding: A Bosnian judgment admitted at alien Defendant’s jury trial resulting in conviction of making a false statement in an immigration matter violated the Confrontation Clause.
Ortiz v. Yates, 2012 WL 6052251 (9^th Cir. 2012):

Holding: Where trial court in spouse abuse case prohibited Defendant from cross-examining spouse-victim as to whether the prosecutor had threatened her, this violated Defendant’s Confrontation Clause rights.
U.S. v. Duenas, 2012 WL 3517605 (9^th Cir. 2012):

Holding: Even though Officer was unavailable because he had died by the time of trial, his testimony at a pretrial suppression hearing could not be admitted as non-hearsay former testimony since the Defendant’s motive at the suppression hearing was solely to demonstrate that his statements to the Officer were involuntary and his motive for cross-examining Officer at trial would be different in that it would be to challenge the substance of the statements.
U.S. v. Bustamante, 687 F.3d 1190 (9^th Cir. 2012):
Holding: Admission of an affidavit purporting to be a copy of Defendant’s Phillipine birth certificate in case involving illegal reentry and making a false statement to get a passport and government benefits violated confrontation rights.
Ocampo v. Vail, 2011 WL 2275798 (9^th Cir. 2011):

Holding: Admission of police detective’s testimony about a non-testifying witness who confirmed that Defendant was at scene of crime and was the shooter violated Confrontation Clause.
U.S. v. Woodward, 2012 WL 5458402 (10^th Cir. 2012):

Holding: Defendant’s confrontation rights were violated where trial court prohibited cross-examination of a state inspector with a prior judicial credibility determination of him that would have shown that inspector was willing to exaggerate or fabricate an odor of marijuana to obtain a conviction.
U.S. v. Charles, 2013 WL 3827664 (11^th Cir. 2013):

Holding: Defendant had Confrontation Clause right to confront the interpreter who translated his alleged statements made to police during interrogation.
U.S. v. Charles, 93 Crim. L. Rep. 581 (11^th Cir. 7/25/13):

Holding: Prosecutor must call translator who translated Defendant’s statement for police to testify, because the 6^th Amendment confrontation right of Crawford applies to such translators; when Officer testified as though the statements were made by Defendant in English, he was actually testifying to the out-of-court statements of the interpreter; “the interpreter made the testimonial statements to [officer], and, accordingly, is the declarant of the English language statements that [officer] heard and testified to at trial.”
U.S. v. Blazier, 88 Crim. L. Rep. 372 (C.A.A.F. 12/1/10):

Holding: Confrontation Clause prohibits expert who did not perform test results from testifying to the non-testifying examiner’s tests.
U.S. v. Smith, 2011 WL 1437378 (D.C. Cir. 2011):

Holding: Letters from state court clerk describing Defendant’s prior convictions and prepared at request of prosecutor were testimonial and not admissible without opportunity to cross-examine the clerk.
U.S. v. Williams, 2010 WL 4071538 (D.D.C. 2010):

Holding: Autopsy report and death certificate are testimonial.
Jenkins v. U.S., 93 Crim. L. Rep. 744 (D.C. 9/12/13):

Holding: Defendant’s confrontation rights were violated when DNA analyst testified about a DNA match based on DNA profiles developed by another analyst; appellate court holds that Supreme Court’s split decision in Williams v. Illinois (U.S. 2013) only applies in cases based on identical facts; “the splintered decision in Williams, which failed to produce a common view shared by at least five Justices, creates no new rule of law that we can apply in this case.”
Young v. U.S., 2013 WL 1349179 (D.C. 2013):

Holding: FBI examiner’s testimony that she matched a DNA profile which had been derived by her staff was “testimonial” under Confrontation Clause, and not admissible.
Longus v. U.S., 2012 WL 4122913 (D.C. 2012):

Holding: Where trial court refused to allow defense to questions Officer about his “coaching” of witnesses in another case, this violated Defendant’s confrontation rights.
U.S. v. Dupree, 2011 WL 5884219 (E.D. N.Y. 2011):

Holding: Defendants were entitled to cross-examine a government witness regarding her use of antianxiety medication because it was probative of her ability to recall the events about which she was expected to testify.
U.S. v. Stitt, 2010 WL 5600986 (E.D. Va. 2010):

Holding: Confrontation Clause applies to capital penalty phase.
James v. State Dep’t of Corrections, 2011 WL 3862750 (Alaska 2011):

Holding: Confrontation rights violated in prison administrative proceeding where inmate did not get to cross-examine witnesses to prison incident.
Vankirk v. State, 90 Crim. L. Rep. 107 (Ark. 10/13/11):

Holding: 6^th Amendment right to confront witnesses applies to non-capital jury sentencing proceedings.
State v. Maguire, 94 Crim. L. Rep. 242 (Conn. 11/19/13):

Holding: Child sex abuse victim’s statements during a forensic interview were “testimonial” for Confrontation Clause purposes. (According to the Criminal Law Reporter, the admissibility of hearsay statements to health care personnel who conduct examinations of apparent victims of abuse is among the most significant questions the U.S. Supreme Court has yet to address under Crawford v. Washington, 541 U.S. 36 (2004)).
Martin v. State, 92 Crim. L. Rep. 539 (Del. 2/4/13):
Holding: Even though lab manager certified the results of testing performed by another lab employee, the Confrontation Clause does not allow lab manager to be the Witness who presents the results in court.
Wheeler v. State, 90 Crim. L. Rep. 664 (Del. 2/7/12):

Holding: A defendant’s confrontation rights were violated when a detective was allowed to testify that, after interviewing several witnesses who were not present at trial, he had no reason to believe that anyone other than the defendant was involved in a shooting.
Parker v. State, 90 Crim. L. Rep. 331 (Fla. 12/1/11):