Checko, Excited Chickens and a Portuguese Gentleman

Facts

Alejandro R was stabbed during an after-hours melée outside Dominic's Bar. Alejandro testified that as the patrons emptied out of the bar, an unknown female approached him and accused him of damaging her car. During the shoving match that followed, the woman punched Alejandro in the nose and a man came over and hit him in the jaw. Alejandro tried to run away but "they" chased after him and threw him down. Several people were coming at him from all sides at which point he felt that he was stabbed on the left side of his torso. He never saw who stabbed him but, while lying on the ground, heard people saying "Checko did it."

Anna B. testified that she knew defendant by his nickname "Checko". She had been to Dominic's Bar that evening but was still inside when the stabbing occurred. When she came outside the incident was over but she heard unidentified people saying that "Checko did it".

Joyce L. was also present and testified that the fight had been started by a white female who had accused Alejandro R of having kicked her car. The woman began hitting Alejandro who then grabbed her arm and told her to stop. At that point a "bunch of people started fighting and stuff". According to Joyce, defendant wrestled Alejandro to the ground and "that's when they pulled out something and I seen him pull out something." Joyce could not say, however, which side Alejandro had been stabbed on.

At trial over defense objection, the prosecution was allowed to introduce the hearsay statements of the people who were heard to say that "Checko did it". The trial judge allowed the statements to come into evidence under the so-called "excited utterance" exception to the rule against permitting hearsay testimony.

Issue-1:

Was Anna B's hearsay testimony that she heard people saying "Checko did it" properly admitted as an "excited utterance"?

Issue -2:

Even if the testimony was properly admitted under the "excited utterance" exception to the hearsay rule, was defendant deprived of his consitutional right to confront witnesses by not being able to cross-examine the unkown people who had (allegedly) said that he had "done it"?

Argument-1.

Anna B's hearsay testimony was improperly admitted because there was no determining whether or not the statement "Check did it" was made in an excited state of mind and whether the statement reflected something that was actually perceived by the declarant.

Background: The Hearsay Rule prohibits testimony that repeats what somebody else said outside of court; i.e. any testimony that in effect says, "I heard him say...." The reason for the rule is that there is no way to "test" the truthfulness of the alleged statement without being able to cross-examine the person who actually made it. However, courts have allowed many exceptions to the Hearsay Rule. One of those exceptions involve excited utterances. In California, this exception is found in Evidence Code § 1240. That section allows hearsay testimony if the out-of-court statment (1) describes or explains an "event perceived by the declarant" and (2) was "made spontaneously while the declarant was under the stress of excitement..." The theory is that a person who is an excited state of mind does not have time to calculate or fabricate a lie and therefore any simple statements of perceived fact are sufficiently trustworthy to be accepted as true without further cross examination

In the present case, there were no facts showing that the persons or persons who made the statement actually saw "Checko do it". In addition, there were no facts showing that they were in an excited state of mind when they made the statements. Anna B's testimony that she heard people say "Checko did it" in no way even implied that these people actually saw what they alleged. It is quite possible that the people who made this statement were repeating something that someone else said. By the same token, it is impossible to say that the person or persons making this statement were in an excited state of mind. The picture that comes to mind is that they were running about excited like excited, speaking chickens, but that picture is no more than an unfounded assumption, given that Anna B never testified as what the apparent mental state of these people was and stated that when she came out of the bar and heard the alleged statements, the stabbing had already occurred. Without knowing details about how and when the statements were made it is impossible to make a determination as to their circumstances and reliability. Put another way -- it is impossible to admit hearsay statements of unknown declarants. That is the very evil the Hearsay Rule was designed to prevent.

Argument-2

Even supposing, hypothetically, that Anna's hearsay testimony qualified as an admissible "excited utterance" its admission violated defendant's Due Process rights under the Confrontation Clause as construed by Crawford v. Washington (2004) 541 U.S. 36.

Background: The Sixth Amendment guarantees the right of an accused in a crimianl case "to be confronted with the witnesses against him." (Delaware v. Van Arsdall (1986) 457 U.S. 673, 678). "The right of confrontation and cross-examination is an essential and fundamental requirement of the kind of fair trail which is this country's constitutional goal." (Pointer v. Texas (1965) 380 U.S. 400, 405.) Nevertheless, "fundamental" as it might have been, the Supreme Court allowed "the goal" to be achieved by other means without actual confrontation. In Ohio v Roberts (1980) 448 U.S. 56, the court affirmed that hearsay statements could be admitted without actual confrontation provided a judge screened them and determined that they had sufficient "indicia of reliability". Thus, for example, if a hearsay statement qualified as an excited utterance it would be sufficiently trustworthy to be admitted even if the person who made the statement could not be cross-examined. In this way, the "purpose" of the constitutional right would be assured.

However, in Crawford v. Washington, the Supreme Court reversed itself, stating that "where testimonial statements are at issue the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actual prescribes: confrontation." (Id, at pp 68-69.) Writing for the majority, Justice Scalia paraded a long roll of absurd and inconsistent "judicial reliability determinations". A procedure that produced such inconsistent results could hardly be deemed capable of producing something called "reliability." No -- the Constitution did not prescribe some pie-in-the sky "goal", it prescribed a specific procedure: actual confrontation. Ohio v Roberts was overruled.

But in the law, nothing is ever settled. There are many kinds of statements that are offered to prove different matters and not all of them are testimonial. Statements of two people in a fight threatening one another, or statements given to police or paramedics during an emergency, and statements made during contract negotiations are all examples of non-testimonial utterances which would not always trigger a right to confront the witness. What is "testimonial" for purpose of the Confrontation Clause is, as of now, a land without borders.

Although Crawford left open the precise limits of what qualified as "testimonial" statements, it did review the judicial history of the Confrontation Clause dating back to the early 17th century. Based on these historical precedents, Crawford held that certain types of statements were indisputably testimonial. These included:

1. statements given at formal prior judicial, legal hearings or affidavits;
   
2. statements given to police during criminal investigations or interrogations, and
3. statements "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." (Id. at pp. 51-52.)

The statements in this case clearly qualified as type (3) because they were essentially accusatory. Whoever made the statement was undeniably imputing a crime to "Checko". Whether that was an honest belief or whether it was a calculated attempt to shift blame, the very purpose of the statement was to incriminate defendant. No reasonable person would understand the statement to be anything other than "testimony against" Checko.

In addition, since Crawford was decided, the Supreme Court has amplified on what kind of statements qualified as "testimonial". In Davis v. Washington (2006) 547 U.S. __, the Supreme Court cautioned against concluding that "statements made in the absence of any interrogation are necessarily non-testimonial." (Id at slip pg. 7.) It cited Lord Cobham's letter to Lady Arabella, at Sir Walter Raleigh's Trial, in which Cobham implicated Sir Walter Raleigh in treason against the King.

Sir Walter Raleigh's Trial?

Background: In 1603, Sir Walter Raleigh was tried for treason on the grounds that he had plotted a Catholic overthrow of Kings James I. Found guilty on hearsay testimony, Sir Walter was imprisoned in the Tower and ultimately beheaded. Lord Cook, the prosecutor, later admitted that the case had been a disgrace to English Law and this travesty of justice became the seed for the Right to Confrontation in our Bill of Rights. The Crawford Case relied heavily on Raleigh's Case 2 (1603) How. St. Tr. 16 noting that "the justice of England has never been so degraded as by the condemnationof Sir Walter Raleigh" (Id., at pg. 44, citing (1 Jardines State Trials (1832) 418, here )

Analysis of Raleigh's Case shows that the statements at issue in this case would clearly have been considered "testimonial" for purposes of the Confrontation Clause. At that trial, Lord Cook produced a variety of statements given by witnesses to magistrates during secret closed interrogations. These type (1) statements included Lord Cobham's confession. But in addition to these declarations and to Lady Arabella's Letter, there was another item of evidence that was pure hearsay scuttlebutt, viz:

"The prosecution responded to Raleigh's complaints against being denied an opportunity to confront his accusers not by producing Cobham but by calling a boat pilot named Dyer, who testified that while in Lisbon a Portuguese gentleman told him, "Your king [James] shall never be crowned for Don Cobham and Don Raleigh will cut his throat before he come to be crowned." Raleigh protested this evidence on the ground that, "This is the saying of some wild Jesuit or beggarly priest; but what proofis it against me?" The prosecutor Lord Coke, responded , "It must perforce arise out some preceding intelligence and shews that your treason had wings." (1 Jardine op.cit at pp. 389, 436.)

The hearsay statements of the pilot Dyer are strictly analogous to Anna B's statements in this case. In both instances, the witness was repeating the accusation of some unknown declarant. The Supreme Court in Crawford and again in Davis relied heavily on Raleigh's Case as the basis for its ruling on what the Confrontation Clause requires. This ancient and seminal precedent of Anglo-American law, shows that defendant in this case has a constitutional right to confront his unknown accusers, and admission of the hearsay testimony that "Checko did it" was constitutional error.

Although Joyce L. did testify that defendant stabbed Alejandro, her testimony was vague and equivocal, with repeated reference to things done by "they" and "them". Where constitutional error is inovlved it must be shown beyond a reasonable doubt that the error did not contribute to the verdict. This cannot be shown in this case, since it is likely that given Joyce's vague testimony, the jury was fatally influenced by the seemingly "corroborating" hearsay statements that Checko did it.

Court of Appeal Opinion

The Court of Appeal ruled that Anna B's heasay qualified as an excited utterance under the rule of People v. Provencio (1989) 210 Cal.App.3d 290 which held that "the fact a declarant's identity is unknown does not preclude admission of a spontaneous statement." (Id, at p. 302.)

With respect to the Crawford Confrontation claim, the Court of Appeal held that the issue had been waived because defendant's attorney did not object to the hearsay statement under "Crawford" by name.

Critique

Reliance on Provencio, at this point, is very questionable jurisprudence. Even under the pre-Crawford rules, it is simply absurd to think that the circumstances of a statement's utterance can be examined for excitability, perception and trustworthiness where the people who made the statement are unknown.

Provencio is an example of hard cases making bad law. In that case an on the scene witness identified the defendant by sight as the person he saw fleeing a house that had been burglarized. In addition he was allowed to testify that he heard unidentified children yelling "there goes Angel" (the defendant's name). The Court allowed the hearsay statement on the ground that "modern" law only required that the statement at issue be "excited". That is wrong, Evidence Code § 1240 has at all times required a two pronged showing which is impossible without knowing who saw what.

In all events Provencio is distinguishable. In that case the unknown children were not accusing Angel of anything. They merely identified him by name, as a person known as "Angel". They did not identify him as the burglar. It is common sense that people normally do not go about mis-naming someone. A person known as "John" is not usually pointed out as "Sam". In this unique situation the childrens' statements did have "indicia" of reliability. But they were also irrelevant given that the witness at trial identified the defendant as the person he himself had seen that night. Here, the hearsay statement levelled an actual accusation of criminal conduct, which no one (except possible Joyce) had actually seen.

The Court's refusal to hear the Crawford issue is another deplorable case of letting the prosecution off on a technicality. It is true objections at trial are supposed to be specific in order to prevent game playing on appeal. But how specific depends on the state of the law. Where the law itself is unsettled (as in this case where there was no complete definition of "testimonial" statements) it is normally sufficient to make a general objection. This is particularly the case where, as here, the subject matter of the objection involves constitutional issues of great general importance.

But that's just my opinion.

©Justin Law, 2009.

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