Recorded Testimony in Court: Crawford v. Washington Explained

Five years after Crawford, in Melendez-Diaz v. Massachusetts (2009), the Supreme Court held that forensic analyst reports could not be presented to juries without the analyst testifying. Two years later in Bullcoming v. New Mexico (2011), the Court held that toxicologists could not testify about work done by different analysts. Both cases applied Crawford's confrontation clause analysis.

The Melendez-Diaz case, which applied Crawford principles, established that forensic evidence such as crime lab technician affidavits stating that a substance weighed two grams and tested positive for cocaine constitutes testimonial hearsay. This evidence cannot be admitted under the business record exception and requires the actual analyst to testify at trial. This changed prosecution practice by requiring them to call forensic analysts at every trial.

Under Crawford, you don't go straight from whether something is hearsay to whether it falls under a hearsay exception. Instead, you ask an intermediate question: is the statement testimonial? The vast majority of hearsay exceptions answer this question 'no.' There must be an eye toward future criminal proceedings; otherwise Crawford doesn't apply. Therefore, crime labs are in but hospitals are out for the most part. Melendez-Diaz held that if the prosecution enters testimonial statements from a witness, that itself renders them against the defendant—it doesn't have to be directly accusatory.

The Crawford doctrine creates significant challenges in two major contexts. First, in domestic violence cases, complaining witnesses frequently become unavailable to testify at trial, yet prosecutors cannot simply introduce their earlier statements to police without satisfying Crawford's requirements. Second, in scientific evidence cases, the doctrine creates logistical nightmares for prosecutors. In Melendez-Diaz v. Massachusetts (2009) and Bullcoming v. New Mexico (2011), the Supreme Court held that laboratory certificates of analysis and crime lab reports are testimonial statements requiring live analyst testimony. This forces prosecutors to schedule court dates around distant crime laboratory locations, often resulting in case dismissals when analysts cannot be present despite critical evidence being unavailable through other means.

The security of Crawford doctrine depends on Supreme Court composition. Four justices (Kennedy, Thomas, Alito, and Roberts) have consistently opposed Crawford's application, particularly in forensic analyst cases. In Melendez-Diaz v. Massachusetts (2009) and Bullcoming v. New Mexico (2011), four justices dissented, attempting to distinguish forensic analysts from conventional witnesses. Justice Kennedy initially tried this distinction but abandoned it in subsequent cases. Jeff Fisher expresses concern that Crawford may suffer the same erosion that affected Roberts, with courts gradually admitting more testimonial statements under reliability exceptions. Cases like Michigan v. Bryant worry him because they expand testimonial boundaries. However, he believes Crawford provides a sturdier doctrinal structure asking fundamentally different questions about whether statements threaten confrontation rights. Professor Fisher notes a historical cycle: after Roberts was decided, the criminal defense bar initially celebrated the reliability standard, while prosecutors fought against it. By 1992, the Solicitor General argued that Roberts was wrong and that the Confrontation Clause should only cover special kinds of testimonial hearsay. Instead of achieving this goal, courts watered down the reliability standard to virtually nothing, leading to Crawford's eventual rejection of Roberts.

This segment explains the constitutional issues in Sanchez's case. Sanchez argued that the note his girlfriend wrote 11 days before her death violated his Sixth Amendment right to confront witnesses because she was dead and could not be cross-examined. The Montana Supreme Court agreed the note was testimonial because its primary purpose was to accuse Sanchez in the event of her untimely death. The court applied the forfeiture by wrongdoing doctrine, which holds that if a defendant intentionally kills a witness, they forfeit their Sixth Amendment right to confront that witness. This prevents defendants from benefiting from making witnesses unavailable to testify. The court found that Sanchez admitted to intentionally killing his girlfriend, so he forfeited his right to confront her, and her note was properly admitted to the jury.

Forfeiture by wrongdoing allows admission of out-of-court victim statements when three elements are established: (1) Witness unavailability—resulting from inability to locate, feigned amnesia, refusal to testify, marriage to defendant, or deportation; (2) Unavailability resulted at least partially from defendant's wrongdoing—not requiring force or threats, but including emotional appeals and control tactics; (3) Defendant intended at least partially to make witness unavailable. This equitable doctrine stems from Reynolds v. U.S. (1878), recognizing that confrontation rights can be forfeited when defendants kept witnesses away through wrongful conduct. Wrongdoing includes emotional manipulation, encouraging amnesia claims, or inducing Fifth Amendment privilege exercise.

Forfeiture by wrongdoing (from Reynolds v. U.S., 1878) allows hearsay statements to be admitted when a defendant wrongfully caused a witness's unavailability. Three requirements must be met: (1) the witness is unavailable (cannot be found, refuses to testify, feigns memory loss, or invokes marital privilege); (2) unavailability resulted from defendant's wrongdoing; (3) defendant intended to cause unavailability. Standard of proof is preponderance of evidence (except three states requiring clear and convincing). This doctrine applies to any unavailable witness and opens doors to police statements, statements to friends and family, and other hearsay evidence.

Forfeiture by wrongdoing requires proving three elements: (1) The witness is unavailable (cannot be located despite reasonable efforts, has died, asserts Fifth Amendment privilege, refuses to testify, or has been murdered); (2) The defendant wrongfully caused or acquiesced in making the witness unavailable; (3) The defendant did so with the intent to keep the witness from coming forward, testifying, or disclosing information to police. The wrongdoing doesn't require physical violence—persuasion, coercion, and corrupt persuasion (as defined in federal witness intimidation statutes) suffice. Prosecutors should gather evidence including jail phone calls, relationship history, prior criminal/civil cases, and testimony from others who observed intimidation.

In criminal trials, if a defendant instructs witnesses not to appear in court, this conduct may constitute 'forfeiture by wrongdoing,' a legal doctrine that allows the prosecution to introduce evidence that would otherwise be inadmissible, as the defendant's intentional wrongdoing prevented the witness from testifying; this doctrine requires the conduct to be wrongful and intentional, and courts must carefully evaluate whether such conduct rises to the level of forfeiting the defendant's right to challenge witness testimony.

Prosecuting domestic violence cases requires prosecutors to understand the unique dynamics of intimate partner violence, including trauma-informed interviewing techniques, the importance of relationship context, and navigating constitutional challenges like Crawford v. Washington's testimonial statement requirements; successful prosecution involves not just trial strategy but also victim-centered approaches that recognize why victims may not participate, using tools like the ongoing emergency exception and forfeiture by wrongdoing doctrines to secure justice even when victims cannot or will not testify.

Before 2008, refusing to testify as a subpoenaed witness could result in jail for contempt. California's 2008 law (Civil Code 1219(b)) changed this for domestic violence victims, allowing refusal without jail but potentially civil fines. Domestic violence cases can proceed without victim testimony, as in murder cases. After Crawford v. Washington (2004), victim statements are generally inadmissible unless the victim testifies, except for 'ongoing emergency' statements like 9-1-1 calls, which can be admitted even without victim testimony.

In domestic violence cases where victims are too afraid to testify or withdraw statements, the state has a responsibility to prosecute on behalf of victims. Courts should take seriously the gravity of crimes committed by partners who violate restraining orders and continue threatening victims. Without state prosecution, dangerous individuals who refuse to comply with legal orders eventually gain opportunities to kill their victims permanently.

Domestic violence cases face significant legal and social barriers: (1) Victims often lack courage to testify in court due to fear of social stigma and family dishonor, (2) Courts may be reluctant to accept victim testimony, (3) Victims may be pressured to settle or withdraw complaints, (4) The burden of proof is high, and (5) Many victims do not recognize domestic violence as a crime requiring legal intervention. These barriers prevent justice for millions of women who suffer domestic violence daily. The legal system must be more sensitive to victim testimony and provide protection for those who come forward.