Under Crawford v. Washington, ((2004) 541 US 36), out of court statements by witnesses that are testimonial are barred under the Confrontation Clause of the Sixth Amendment, unless witnesses are unavailable and the defendant had prior opportunity to cross-examine witnesses. (Id. at 54). “Testimonial” statements are those that are made in circumstances that reasonably suggest their future use in a criminal trial. (Id. at 52). Regardless of whether such statements are deemed reliable by a judicial officer, where testimonial statements are at issue, the Constitution requires “that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” (Id. at 61).  When an out of court statement implicating the defendant is “testimonial” in nature, its admission violates the Confrontation Clause unless the declarant is unavailable and the defendant has had an opportunity to cross-examine the declarant. (Id. at 68).

There are three situations articulated in which the United States Supreme Court suggests that Crawford does not apply.

The first, and most common, instance is where Crawford is not indicated because the statements are nontestimonial in nature.   A statement made by a hearsay declarant primarily “to enable police assistance to meet an ongoing emergency”, for instance, is considered nontestimonial. (Davis v. Washington (2006) 547 U.S. 813, 822). However, where a statement is made under circumstances that, “objectively indicate that there is no ongoing emergency, and that the primary purpose  . . .  is to establish or prove past events potentially relevant to later criminal prosecution”, the statements qualify as testimonial, requiring exclusion or an opportunity for the defendant to cross-examine the witness. (Id.)  Thus, where a statement describes not “what is happening” but is rather relevant to “what happened” and is being used against a defendant in a criminal trial, the Confrontation Clause is triggered and the defendant must be afforded an opportunity to cross-examine the hearsay declarant or have the statement excluded. (See id. at 830-832). Thus, in the facts of the Crawford decision itself when a witness’s previously recorded statements in response to police questioning was offered against the accused in lieu of live testimony because the witness asserted the spousal privilege, (Crawford, supra, 541 US at 40-41), this evidence was deemed testimonial, and therefore excludable, the Court determining that, “(s)tatements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.” Id. at 53.

The second situation in which Crawford appears exempt apply is in the context of “dying declarations”. The high court found “scant evidence that exceptions were invoked to admit testimonial statements against the accused in a criminal case” at common law (id. at 1367), “[t]he one deviation we have found involves dying declarations. The existence of that exception as a general rule of criminal hearsay law cannot be disputed. [Citations.] Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are. [Citations.] We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.” (Id. at 1367, fn. 6). When the issue was actually presented by the facts of a live case, an exemption to the Confrontation Clause for dying declarations was accepted by the California Supreme Court. (See People v. Monterroso (2004) 34 Cal.4th 743, 764.) In Monterroso, supra, 34 Cal.4th 743, our Supreme Court concluded that the dying declaration at issue “passe[d] constitutional muster.” (Id.) This is because, “the confrontation clause `is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding’ . . ., it follows that the common law pedigree of the exception for dying declarations poses no conflict with the Sixth Amendment. We therefore conclude the admission of the [declarant’s] dying declaration was not error.” (Id. at 765.)

The final exception to the Confrontation Clause accepted by Crawford was the principle of forfeiture by wrongdoing: “forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability.” (Crawford, supra, 541 US at 62, citing Reynolds v. United States (1879) 98 U. S. 145, 158-159). The United States Supreme Court has reaffirmed this historical common law exception to the bar against testimonial hearsay where the witness “was `detained’ or `kept away’ by the `means or procurement’ of the defendant.” (Giles v. California (2008) 554 U.S. 353, 359.) This exception—commonly referred to as “forfeiture by wrongdoing”—is applicable when the defendant causes the witness to be unavailable to testify with the intent to cause the witness’s unavailability. (Id. at 359-361.) The prosecution bears the burden of showing forfeiture by wrongdoing by a preponderance of the evidence. (People v. Banos (2009) 178 Cal.App.4th 483, 503, fn. 12).

If an alleged victim of domestic violence cannot be found or produced for trial, prosecutors may nonetheless seek to circumvent the Constitutional guarantee of Confrontation by relying on the forfeiture by wrongdoing doctrine. This may be the case even if the defendant didn’t do anything “wrong” such as harm, threaten, or bribe the witness, such as by urging the witness to “tell the truth”. When such situations arise, it is the defense duty to show that the proffered statements are testimonial statements that do not fall within the forfeiture by wrongdoing exception to the Confrontation Clause. Namely, the defense must challenge the evidence by contending that the People have not shown that: the statements sought to be admitted are untestimonial; that the witness is unavailable; that the defendant engaged in wrongdoing intended to procure the witness’s unavailability; and that the defendant caused the witness’s unavailability.

(a) Showing that the statements sought to be admitted are testimonial in nature, and therefore the Confrontation Clause is implicated.

The United States Supreme Court considered whether victims’ reports of domestic violence to the police are testimonial for Confrontation Clause purposes in Davis, supra, 547 U.S. 813, which consolidated two cases: Davis v. Washington and Hammon v. Indiana. In Davis v. Washington, a domestic violence victim called 911 to report an ongoing incident. (Id. at 817.) The victim told the operator that her former boyfriend was “`here jumpin’ on me again'” and “`usin’ his fists.'” The victim subsequently told the operator that her boyfriend had left in a car, after which the operator continued to question the victim about the identity of the boyfriend and the circumstances of the attack. The police arrived shortly thereafter and observed the victim in a frantic state with fresh injuries on her forearm and face. In Hammon v. Indiana, police responded to a domestic violence call and found the victim alone on the front porch of her home. (Davis, supra, 547 U.S. at 834.) She appeared “`somewhat frightened'” but claimed nothing was wrong. Upon entering her house, police saw a heating unit with broken glass and found the victim’s husband in the kitchen. Police kept the couple in separate rooms and questioned the victim. She signed an affidavit stating that her husband had hit her and shoved her into the broken glass of the heating unit, among other things.

The high court held that the victim’s statements in the 911 call in Davis v. Washington were nontestimonial, but that the victim’s statements to police officers in Hammon v. Indiana were testimonial. (Davis, supra, 547 U.S. at 828, 829-830) The court distinguished between these cases on the basis that the statements in Davis were taken primarily for the purpose of resolving an ongoing emergency, while Hammon involved statements taken for the purpose of investigating past criminal activity. The court observed that the victim in Davis, while facing an ongoing emergency, was speaking about events as they were actually happening, rather than describing past events. (Id. at 827.) By contrast, in Hammon, the victim’s interrogation took place hours after the events she described had occurred and the emergency had passed. (Id.) The court further observed that police interrogations may “`evolve into testimonial statements'” as questions change from those needed to “address the exigency of the moment” to those designed to “`elicit testimonial evidence.'” (Id. at 828-829.) The high court instructed trial courts to redact witness statements to remove the testimonial portions. (Id.).

The defense would then ask the Court to therefore reject the People’s request to find that Crawford is not implicated by the statements made by the witness to various law enforcement officials, representatives, and support staff involved in the current case, establishing that the facts align closer to a Hammon as opposed to a Davis situation.

(b)  Demonstrating that a witness is not actually unavailable.

The Confrontation Clause under Crawford applies to out of court statements where the declarant is unavailable and the defendant has not had an opportunity to cross-examine the declarant. (Crawford, supra, 541 US at 68). Under California Evidence Code section 240, a party is “unavailable” if:

(1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her statement is relevant.

(2) Disqualified from testifying to the matter.

(3) Dead or unable to attend or to testify at the hearing because of then-existing physical or mental illness or infirmity.

(4) Absent from the hearing and the court is unable to compel his or her attendance by its process

(5) Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.

(6) Persistent in refusing to testify concerning the subject matter of the declarant’s statement despite having been found in contempt for refusal to testify.

Cal. Evid. Code § 240(a).

The ground stated in Evidence Code section 240(a)(4), pertaining to inability to procure a witness after reasonable diligence to secure attendance, is generally the most common basis to declare unavailability.

The term “reasonable diligence” or “due diligence” under Evidence Code section 240, subdivision (a)(5) “connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. [Citations.]” (People v. Cromer (2001) 24 Cal.4th 889, 904; id. at 898[reasonable diligence same as due diligence].) Considerations relevant to this inquiry include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness’s possible location were competently explored. (Id. at 904.) When an attorney has knowledge of a “substantial risk that this important witness would flee,” it has a duty to, “‘take adequate preventative measures’ to stop the witness from disappearing . . . .” (People v. Hovey (1988) 44 Cal.3d 543, 564, citing People v. Louis (1986) 42 Cal.3d 969.)

In most cases, the People would be expected to show that the witness is unable to be served with a subpoena or procured as a witness for trial. This would be through a declaration of a process server, investigator, or other party indicating that efforts have been made to secure the witness’s attendance at trial, and that that due diligence has been exercised to determine if the witness was suffering some other disability regarding her inability to be served. The defense would seek to show that the efforts made by the prosecution to secure the witness were insufficient to show unavailability, and that it has not been shown that adequate, diligent efforts were made by the prosecution to locate and serve the witness have been made, or that, as soon as the People became aware that the witness may have been evading detection, that it sought to take “preventative measures” to ensure that the witness would not become unavailable thereafter. (Hovey, supra, 44 Cal.3d at 564). Therefore, the defense would ask the Court to find that as a threshold matter, the People have not met its burden in demonstrating that reasonable efforts have been employed to secure the witness’s attendance at trial so as to allow the Court to make a finding that they is unavailable for trial.

(c) Demonstrating that the defendant did not engaged in wrongdoing as opposed to urging the witness to discontinue perpetuating a fabricated police report.

In the typical case involving forfeiture by wrongdoing, the defendant prevents a witness from testifying by killing the witness before trial. (See, e.g., Giles, supra, 554 U.S. at 356; Banos, supra, 178 Cal.App.4th at p. 485; United States v. Jackson (4th Cir. 2013) 706 F.3d 264, 265; United States v. Gray (4th Cir. 2005) 405 F.3d 227, 243; United States v. Dhinsa (2d. Cir. 2001) 243 F.3d 635, 652; United States v. Cherry (10th Cir. 2000) 217 F.3d 811, 814-815; United States v. Emery (8th Cir. 1999) 186 F.3d 921, 926; United States v. White (D.C. Cir. 1997) 116 F.3d 903, 911; United States v. Thai (2d Cir. 1994) 29 F.3d 785, 814.) But murder is not the only form of wrongdoing justifying an exception to the Sixth Amendment; such conduct includes threats, intimidation, and bribery. (People v. Jones (2012) 207 Cal.App.4th 1392, 1399 [finding exception to Confrontation Clause where witness failed to appear due to threat of violence].)

In certain cases, the People may not be able to show that the defendant bribed, intimidated, or threatened the witness by violence, but rather dissuaded her from testifying by suggesting that they submit recantation letters, describe alternate fact scenarios, and discontinue cooperating with authorities. In such cases, the defense would attempt to show that the defendant had not engaged in wrongdoing as is an element of the forfeiture by wrongdoing exception to the Confrontation Clause in terms of suggesting that the witness discontinue perpetuating a fabricated story that is preventing their future plans for a life together, or some other lawful, legitimate purpose.

d) Showing that the defendant’s actions were not the cause of the prosecution’s inability to present the witness at trail 

Even if a Court does conclude that the witness  is unavailable and that the defendant pressured the witness to make false statements to law enforcement and the court, this conduct alone would not support a finding of forfeiture by wrongdoing. A core element of forfeiture by wrongdoing is the requirement that the defendant’s wrongdoing must cause the witness to be unavailable to testify. (Giles, supra, 554 U.S. at 358, emphasis added.) At the most basic level, unavailability means that the witness does not testify, whether due to inability, refusal, or some other reason for the witness’s absence. (Id. at 360; Cal. Evid. Code § 240.) Urging a witness to make false statements, while undoubtedly wrong, is legally distinct from preventing the witness from testifying altogether. Accordingly, even assuming the defendant was urging the witness to lie for him, the prosecution must still show by a preponderance of the evidence that the defendant caused the witness not to testify.

To fight this suggestion, the defense would argue that there is no causal link indicating that the defendant was the cause for the witness’s unavailability. This would be done by establishing facts showing that the witness decided on their own accord to cease cooperation with, or evading detection from, the prosecution . This multitude of non-causal reasons why the witness is currently not cooperating with, or making themselves available to,  the prosecution would be used to show that there is no substantial evidence so as to establish proof by a preponderance of evidence that the defendant caused her unavailability. (See People v. Wallace (2017) 15 Cal.App.5th 82, 93 [“Speculation is not substantial evidence.”].)

The mere fact that a defendant is charged with an offense of domestic violence is insufficient to justify an exception to the Confrontation Clause. “Domestic violence is an intolerable offense that legislatures may choose to combat through many means—from increasing criminal penalties to adding resources for investigation and prosecution to funding awareness and prevention campaigns. But for that serious crime, as for others, abridging the constitutional rights of criminal defendants is not in the State’s arsenal.” (Giles, supra, 554 U.S. at 376.) Accordingly, Giles makes clear that even in domestic violence cases the prosecution must still put forth affirmative evidence establishing the core elements of forfeiture by wrongdoing, including causation.

The defense would argue that because the prosecution was  unable to show by a preponderance of evidence that the defendant caused the witness’s unavailability, the elements of the forfeiture by wrongdoing exception to the Confrontation Clause has not been satisfied. The defense would ask the Court to therefore deny the People’s motion to admit the numerous testimonial hearsay statements made by the witness under the forfeiture by wrongdoing doctrine.

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If you or a loved one is charged with a domestic violence crime or similar offense, the prosecution will press forward in your case and seek to convict by any legal means necessary. This is true even if the primary witness has “made amends”, asked to “drop charges”, or otherwise indicated to the DA that they do not wish the case to proceed. In such cases, you need a trustworthy, trial-tested defense team on your side to fight these tactics and defend your rights to the fullest extent of the law. Call Honeychurch Law

today at 707-429-3111 for a free consultation to determine how we can fight your case and seek to achieve the best possible outcome for your case.

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