Green Light? • No violation if the declarant is subject to cross at trial within the meaning of Crawford • Is the declarant “subject to cross at trial” if he or she is: • called to the witness stand by the state but successfully invokes a privilege? • not present but could have been subpoenaed by the defendant? • not called to the witness stand by the state but is present in the courtroom and could be called as a witness by the defendant?
Green Light-2? • Wife talks to police officer and says that one week ago her husband hit her. She shows officer bruises, and defendant is arrested. Before trial, wife advises prosecutor that she made it all up. State calls wife to stand, offers prior statement, and tenders witness to defense for cross-x. Defense objects to prior statement. Result?
Red Light? • Violation if statement is testimonial and not within limited exceptions allowed by Crawford • Are the following testimonial? • Defendant’s alleged accomplice signs written confession implicating defendant during in-custody interrogation • S. v. Pullen • Accomplice voluntarily makes oral statements to police in own home • In-custody interrogation not required • Formal statement not required
Law enforcement officers rescue woman who was being held at knifepoint by kidnapper. Immediately after rescue, without any questioning by officer, and while shaking, crying, and nervous, woman starts talking about what happened. Law enforcement officers rescue woman who was being held at knifepoint by kidnapper. She is taken to secure area, where she is no longer in peril, and she gives statement about what happened to detective who is there to for purpose of taking her statement. Red Light-2?
Red Light-3? • During DSS investigation, social worker interviews child to obtain information about alleged abuse. State offers child’s statement in criminal prosecution. • Listener does not have to be law enforcement officer
Red Light-4? • Child tells mom about sexual abuse by dad. Mom takes child to doctor, and child tells doctor about sexual abuse, including that dad was the abuser. • Does listener have to be government agent? • How important is listener’s purpose? • How important is speaker’s awareness of purpose? • Can some parts of statement be testimonial? • Does Crawford apply to civil cases?
Red Light-5? • Some factors in determining whether statement was testimonial • Formality of statement and questioning • Affiliation with government • Purpose of production of statement • Declarant’s awareness of purpose of statement • Nature of information provided
Red Light-6? • If the statement is testimonial, are any of the following admissible under a Crawford exception? • Woman’s statement to officer about what happened is offered to corroborate woman’s in-court testimony (or properly impeaches her in-court testimony). • Alleged domestic violence victim does not appear for trial because defendant threatened to kill her if she testifies. • What evidence must the state produce? See Rule 104(a). • Probably not sufficient that alleged victim is terrified of the defendant after what allegedly happened
Red Light-7? • Chemical analyst’s affidavit • Is it testimonial? • Do any exceptions apply?
Expert Opinion • Child was sexually abused or probably was sexually abused • There must be physical evidence, and • Physical evidence must support a diagnosis of sexual abuse • Characteristics are consistent with sexual abuse • Physical evidence not required, but • Opinion may be admissible to explain or corroborate only
License Checkpoints • Is Mitchell all dicta? • Written guidelines not required • But oral guidelines, properly implemented, may be • Specific supervisory approval may not be required • But, general advance approval, and checking in on day of, may be • All incoming traffic stopped
$50 Appointment Fee • In criminal prosecution, state can’t assess cost up front because state constitution bars assessment unless defendant found guilty • Fee can still be assessed if defendant found guilty • Rubin was • wrong