Use of out-of-court statement disallowed

Conviction overturned because defense didn't get to cross-examine

March 09, 2004|By David G. Savage | David G. Savage,LOS ANGELES TIMES

WASHINGTON - The Supreme Court made it harder yesterday for prosecutors and the police to use out-of-court statements against a criminal defendant at his trial.

In a 7-2 opinion, the justices said the Constitution gives defendants a right to confront their accusers in court, a right that cannot be whittled away by allowing statements whenever a witness is unavailable.

The ruling overturns the assault conviction of a Washington state man who was found guilty after the jury heard a statement his wife had given to police. The defendant, Michael Crawford, said his wife's out-of-court statement should have been barred.

Yesterday's opinion was written by Justice Antonin Scalia, relying on the historic and original meaning of the Constitution. He cited the trial of Sir Walter Raleigh, who was convicted of treason in England in 1603 based on a statement given to one of the king's men. Raleigh had asked that his accuser be brought to confront him at this trial, but his request was denied.

Afterward, the English and, later, the American authors of the Constitution, gave defendants a right to confront their accusers. "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him," the Sixth Amendment says.

Nonetheless, the Supreme Court has long permitted courtroom use of statements by witnesses who have died, fled or refused to testify. These are known as "hearsay exceptions," and until yesterday, the court's rule allowed the use of statements that were seen as reliable evidence. For example, a witness' tape-recorded statement to the police would be seen as reliable, and could probably be introduced as evidence if that witness were unavailable to testify.

Scalia's opinion sets a strict standard for the use of out-of-court statements at trial. "The framers would not have allowed admission of testimonial statements of a witnesses," he wrote. "The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement."

Typically, defendants can demand that witnesses appear in court. Sometimes, however, a witness might also be a co-conspirator in a crime and might refuse to testify on the grounds that it would incriminate him.

The issue of out-of-court statements has also arisen in cases involving the abuse of children. The courts have been divided over whether prosecutors should be allowed to use a child's statement to a counselor or the police.

Several lawyers who had read yesterday's opinion said they were not sure whether it would have a broad impact.

For example, it is not clear under yesterday's ruling whether a child's statement to an abuse counselor could be considered testimony.

Although all nine justices agreed that Crawford's conviction should be overturned, Chief Justice William H. Rehnquist and Justice Sandra Day O'Connor disagreed with Scalia's opinion.

"I believe [it] is a mistaken change of course," the chief justice said, predicting it would lead to confusion. "Thousands of federal prosecutors and tens of thousands of state prosecutors need answers as to what ... is covered by the new rule."

In other action yesterday, the court refused to hear a challenge by the Boy Scouts to Connecticuts exclusion of the organization as a beneficiary of state employees' annual charitable fund drive. The state took the action after concluding that the Scouts policy against gay leaders violated the fund drive's nondiscrimination rule.

The Los Angeles Times is a Tribune Publishing newspaper.

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