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Crawford v. Washington - Introduction of Testimony Without a Live Witness

The Sixth Amendment guarantees the right of all criminal defendants to cross-examine their accusers in open court.   “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

In Illinois a variety of statutes have emerged that allow the State to introduce testimony of witnesses without them being presented in open court.  The statutes, in effect, deprive the defendant of his/her right to cross-examine or confront their accusers.  One example is stated in 725 ILCS 5/115-102.a.  That statute allows hearsay evidence that is material (goes to the elements of the offense) may be introduced in court without the declarant (person whose testimony is being introduced) being present.  This deprives the defendant of his/her ability to cross-examine the witness.  The introduction of this evidence can be devastating to the defendant's case.  And if introduced, the defendant can't do a single thing to "tear apart" the hearsay evidence. 

The SCOTUS issued its opinion in Crawford v. Washington, 124 S.Ct. 1354, 158 L.Ed.2d 177, 541 U.S. 36 (2004). 

            To briefly summarize Crawford’s holdings:

1.         The state has the ability to construe how nontestimonial hearsay is admitted at trial.

2.         The state must allow testimonial evidence against a criminal defendant to be admitted at trial only may be introduced when:

            a.         the witness is unavailable; and

            b.         the defendant has had prior opportunity to cross-examine the witness under oath.

The important rule to take away from Crawford is that if the hearsay evidence the State attempts to introduce is "nontestimonial" or "testimonial" dictates under what circumstances it may be introduced.  Any statement made to a police officer (except for certain emergency situations) will be considered "testimonial."  In most criminal cases (especially domestic battery) the police attempt to obtain a statement from the "victim" on scene or shortly thereafter at the police station.  Oftentimes it is an audio recording on scene.  The statements are taken when the "victim" is very upset and are extremely damaging in most cases.  Such statement is considered testimonial and therefore is not admissible unless the conditions stated in #2 above are satisfied.  Most times in such a situation the State will not be able to satisfy the second prong.  Therefore, most times such evidence will not be admissible without a live body testifying.

Illinois law interpreting this body of law is controlled by People v. Stechly, 225 Ill.2d 246, 279, 312 Ill.Dec. 268, 870 N.E.2d 333 (2007).



Brian L. Polinske
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