State v. Mizenko

MONTANA, OF STATE Respondent, Plaintiff v. MIZENKO, MICHAEL

GREGORY Appellant. Defendant 04-488. No. April 15. 2005. Heard April 2005. Submitted January 2006. Decided MT 11. 330 Mont. 127 P.3d 458. (argued), W. Missoula. Appellant:

For Martin Judnich McGrath, General; Attorney For Honorable Mike Respondent: Attorney General, Helena; (argued), Special John Paulson Assistant Gannon, County Attorney, Stephen A. Fort Benton. (Criminal Donahoe,

For AmiciCuriae: Michael Bozeman Defense Lambert, Marty (County Attorneys Bozeman Lawyers); Trial (Montana Mandiloff, Association); A. Coalition Christine Helena Violence). Against Sexual and Domestic Opinion LEAPHART of the Court.

JUSTICE delivered (Mizenko) jury Gregory Mizenko ofhis third offense convicted 45-5-206, Family MCA. of Partner or Member Assault violation § trial, hearsay During the District Court admitted number victim, wife, appeals. Mizenko’s Debra. Mizenko statements from We affirm. is: Were Debra’s statements testimonial?1 issue

¶2

BACKGROUND County Attorney charging an information The Chouteau filed ¶3 Family of 45-5- Mizenko Partner or Member Assault violation § Grove, at trial that neighbor, Dawn the Mizenkos’ testified MCA. late appeared when Groves’house Debra was out breath she area. jaw had a on her cheek or Grove one afternoon. Debra wound friend, her call as well as a Carol that Debra asked to testified King Tami phone and handed the Debra. Richard. Grove called 911 answered the 911 call. Debra, appear failed to at trial. subpoenaed the State she Although

¶4 drinking that her husband had been testified that Debra “said Grove showing testimonial, made that Debra to cross-examine Debra the State If we would consider whether opportunity an at trial that Mizenko had unavailable and statements, required Amendment to overcome a Sixth at the time she made the Confrontation objection. Clause trying Seeking and was to hurt her.” clarification Debra’s statement her, the prosecutor you asked Grove: “And stated that he been had Yes,” drinking and had hurt her?” Grove replied. relying Presumably on the excited utterance exception of Rule

¶5 803(2), M.R.Evid., the objection District Court overruled to the following testimony from King about her conversation with Debra. you

[Prosecution]: Do what you? recall Mrs. Mizenko told her, said [King]: Greg pushed She hit had her down and she pullen [sic] hair-he had out her hair. Okay.

[Prosecution]: request Did she law enforcement? arrested, [King]:Yes. She wanted him she is what said. objection Mizenko, Without from prosecution court also allowed the play audiotape Debra, call jury. tape, the 911 for the On the voice, breathing heavily cracking states, and in a and hit wavering “he me, my hair, pulled out me I so call knocked down. tried hard not to [gasp], umm, but this I anymore.” is ridiculous. can’t do this Officer Buennemeyer Scott testified that he when arrived at home, Mizenko he saw a through bruise on Debra’s face. As he walked house, pens pencils dog he saw on the food floor of kitchen. a lock pet He saw of hair near the in the bowl kitchen another lock of hair on the in the living floor room. The District Court twice objections Buennemeyer’s testimony sustained foundational Buennemeyer, the hair Finally, prosecution was Debra’s. asked you Overruling “Did Debra tell Mizenko where this hair came from?” hearsay Buennemeyer objection, Mizenko’s District Court allowed testified, hair, ‘Yes, did. me to answer. He she She told it was her head, residence, pulled during from her an altercation at her at that time and date.” rested, objected After the State Mizenko Grove, his they

from King Buennemeyer, arguing that denied him right to confrontation. The Court District ruled that Mizenko’s cross- had his examination ofthe witnesses who contact with Debra satisfied right to jury guilty Sixth Amendment confrontation. The found Mizenko by a unanimous verdict.

STANDARD OF REVIEW a district evidentiary We will review court’s decision determine 14, Cameron, 32, its State v. 2005 MT ¶ whether abused discretion. discretion, 14, 1189, 51, Mont. 106 P.3d 14. There is no 326 ¶ ¶ however, Cooper Amendment. interpreting the Sixth properly Industries, (2001), 424, Group, Inc. v. Leatherman Tool Inc. 532 U.S. 674, 456-36, 1678, 1685-86, (indicating 149 686-87 121 S.Ct. L.Ed.2d

303 a constitutional applying when appropriate novo review is de articulation, facts of to the capable precise of concept, standard or (2004), 36, 42, 124 v. 541 U.S. case); Washington particular Crawford novo 1354, 1359, 158 177, 187 (applying de review L.Ed.2d S.Ct. Amendment, the Sixth Washington Supreme application Court’s review). We articulating any expressly albeit standard without interpretations of law and review a district court’s conclusions evidence, Villanueva, 2005 de v Constitution or the rules of novo. State Mathis, 9, 135, 179, 9; 192, 9, MT 328 118 P.3d State v. ¶ Mont. ¶ ¶ 8, 756, 112, 8, 178, 8; 68 United MT 315 Mont. P.3d see ¶ ¶ 2003 (8th 2004), 989, Blue Cir. 372 F.3d States v. Bird

DISCUSSION Landscape Changes I. Crawford enjoy right... “In all shall prosecutions, criminal accused Const, against U.S. amend. be confronted with witnesses him.” recently, Supreme VI. Until Court had allowed courts to admit hearsay “adequate reliability.’” ‘indiciaof Ohio when evidence bore (1980), 597, 56, 66, 100 2531, 2539, 65 v.Roberts 448 U.S. S.Ct. L.Ed.2d (citation omitted). Further, 608 “Reliability can be inferred without hearsay firmly more in a case falls where evidence within a rooted guarantees or if exception” “particularized the evidence has Roberts, 66,100 2539,65 trustworthiness.” at S.Ct. at L.Ed.2d U.S. Thus, Roberts, any at 608. under the rules of evidence subsumed admitting placed substantive restrictions the Sixth Amendment had on hearsay. In v. Supreme United States Court decided (2004), 1354, 177,

Washington 36, 541 U.S. 124 S.Ct. 158 L.Ed.2d hearsay dramatically which the Court bifurcated from the law Clause the Sixth Confrontation Clause. Confrontation hearsay Amendment allowscourts admit criminal defendants (1) testimonial, hearsay if only two instances: the defendant opportunity must have had an to cross-examine the declarant prosecution appear must unavailable to at show the declarant is 1369, 197; trial, Crawford, U.S. at 124 S.Ct. 158 L.Ed.2d at at (2) nontestimonial, adequate must hearsay or if the bear reliability particularized guarantees of trustworthiness. indicia of 203. In at 158 L.Ed.2d at Crawford, 541 U.S. at S.Ct. gave examples, it Supreme Court numerous Crawford, although “testimonial” evidence. specifically declined to define constitutes what at 203. 158 L.Ed.2d Crawford, 541 U.S. S.Ct. 304

Mizenko’s case forces this Court to deal with the definitional void left by Crawford. II. Testimonial vs. Nontestimonial “ Testimony ¶11 ‘[a] solemn declaration or affirmation made ”

purpose establishing of proving or some Crawford, fact.’ 541 U.S. at 51, 71, 1364, 1375, 124 192, S.Ct. at 158 L.Ed.2d at (quoting 1 N. Webster, (1828)) An Dictionary American English Language added). (emphasis However, “[hjearsay statement, is a other than one made the declarant testifying while at the trial or hearing, offered prove evidence to the truth of the matter 801(c), asserted.” Rule M.R.Evid. Debra’s Grove, statements to King, Buennemeyer and are all clearly hearsay. As recognizes, though, whether statements are separate testimonial is a Unfortunately, issue. the facts of this neatly case do not fit within examples of testimonial Crawford’s or nontestimonial. (1) proffers Mizenko ¶12 that all is testimonial if it is (2) substantive and accusatorial. appealing clarity While in its and ease application, of broad; this definition is overly it would require courts to exclude more evidence than the Sixth Amendment requires. Specifically, Supreme that, Court has decided although a statement may be substantively accusatory, the Sixth Amendment would not off-hand, remark,” “[a]n exclude overheard accusatory, albeit because “ such an off-hand remark bears little resemblance to the civil-law abuses the targeted,” 51, Confrontation Clause Crawford, 541 U.S. at 1364, 124 S.Ct. at 158 L.Ed.2d at 192. In the cross-examination essential to system, the adversarial

defendant tests testimony witness’s in the rigorous, most demanding, exacting Crawford, 61, test. 124 S.Ct. at 1370, 158 Through cross-examination, L.Ed.2d at 199. the defendant can delve into the story witness’s and potentially flaws, reveal inherent inconsistencies, Indeed, and insidious motives. Henry Wigmore John “‘greatest called cross-examination legal engine ever invented for discovery (1970), 149, of truth.’” 158, v. Green 399 U.S. California 1930, 1935, 489, 90 S.Ct. (quoting Henry 26 L.Ed.2d 5 John Wigmore, A Anglo-American System Treatise on the of Evidence in (3d 1940)). Trials at Common Law 1367 ed. § Contrary holding Roberts allowed courts to decide testimony whether “adequate reliability” has indicia of “particularized guarantees trustworthiness,” U.S. at S.Ct. at 65 L.Ed.2d the Sixth Amendment itself defines reliability the indicia of guarantees necessary trustworthiness admit testimonial evidence. The Sixth Amendment establishes minimally adequate as the cross-examination through confrontation Crawford, 541 reliability guarantee of trustworthiness. index of (“It commands, not 158 L.Ed.2d at 199. 124 S.Ct. at U.S. at reliable, reliability particular assessed in a that evidence be but cross-examination.”) testing in the crucible manner: reliability demanding requires more test Testimonial evidence protect the framers intended to than non-testimonial evidence because Through from inherent in testimonial evidence. defendant the evils “First, particular principal evil: highlights one example, Crawford Confrontation directed the civil-law Clause was evil at which parte its ex criminal use of procedure, particularly mode of examinations 541 U.S. as evidence the accused.” 50,124 the 1363, at L.Ed.2d at 192. on S.Ct. 158 elaborates Crawford by this The first is concern with engendered two concerns evidence. the possible prosecutorial misconduct overzealousness: testimony parte

The Framers would be astounded to learn ex it was could be admitted criminal defendant because by But court’s government elicited “neutral” officers. even if the accurate, nothing says officer’s assessment the motives Only Sylvia’s of her perception about situation. cross-examination could reveal that. 66, 1373, 541 U.S. 124 S.Ct. 158 L.Ed.2d at 202. In

Crawford, at the identifying possible protections by the afforded purposes behind may Clause, Confrontation notes that Professor Mosteller this concern ways: “government[al] of the manipulation manifest in either of two uttered”; creating or evidence-manipulating witness in words “governmental recording of the of the rather manipulation statement Mosteller, said.” P. v. manipulation than of what was Robert Crawford Witnesses, Washington: Encouraging Ensuring Confrontation (2005). 511, Rev. U. Rich. L. 569-70 abuse the opportunity The second concern is with declarant’s to system on, justice revenge criminal in order to to exact or punish, Raleigh, of Sir as shift the blame the defendant.2 The trial Walter quoted Crawford, danger: illustrates this Cobham, Raleigh’s alleged accomplice, implicated had him in

Lord Privy Council and in a letter. At an examination before trial, jury. Raleigh argued Raleigh’s these were read to the possible similarly purpose the other Professor identifies Mosteller “protect[ing] or even Clause the defendant from malicious falsehoods Confrontation errors Mosteller, governmental manipulation.” independent U. the witness L. Rev. at 571. Rich.

Cobham had lied to save himself: absolutely “Cobham is in the King’s mercy; to him; excuse me cannot avail accusing me he may hope for favour.”

Crawford, 44, 541 U.S. at 1360, 124 S.Ct. at 158 L.Ed.2d at 188 Jardine, (1832)). (quoting 1D. Criminal Trials 435 As the Sixth Circuit noted, has cross-examination is essential expose possible bias or motive of the declarant:

Indeed, danger to a might defendant greater well be if the trial, statement introduced without a confrontation, a statement volunteered to police rather than a statement elicited through formalized police interrogation. imagine One can temptation that someone who grudge might bears a have to volunteer police, truthfully not, or information of the crime, commission of a especially when that person is assured he subject will not be to confrontation. (6th 2004),

United States v. Cromer Cir. 389 F.3d 675. characterizes “a casual remark to an acquaintance” as nontestimonial. 124 S.Ct. at “casual,” L.Ed.2d at 192. The word rather modifying than setting statement, which the declarant made the modifies the declarant’s assumption use, as to if any, what might listener make of the objective statement. When an reasonably declarant would expect the trial, state to use her statements at the Sixth Amendment demands that courts exclude such opportunity absent an (2nd confrontation. United Saget 2004), States v. Cir. 377 F.3d (1st 228-29; 2004), Horton v. Allen Cir. 370 F.3d speaking When government officials, agents circumstances are such that a declarant should reasonably expect that government will seek to use those statements at trial. Whereas when a speaks declarant with her neighbor fence, across the backyard she has much less of an expectation government that the will make prosecutorial use of Any those statements. in situation which the knowingly speaking declarant police government agents to the or implicates concerns both with the declarant’s motivation and with the possibility prosecutorial expects misconduct. The declarant and government trial, understands that may use her at statements and may the police deliberately inadvertently or color the substance oftheir statements to reflect their prejudices understandings own situation, may selectively or record the declarant’s statements. Likewise, signs gives when the declarant an affidavit or a recorded statement, the declarant that the expects state will seek to make use of (1992), 346, 365, those statements. See White v. Illinois 502 U.S. 112

307 Scalia, J., (Thomas, J., by 736, 747, 848, joined 116 L.Ed.2d 865 S.Ct. judgment). Although in the concurring concurring in part obtaining in recorded or sworn may directly involved government not be clearly testimony anticipates testimony, provides a who such declarant White, accused. use the statements an may that the state 747, (“extrajudicial at 112 S.Ct. at 116 L.Ed.2d at 865 502 U.S. materials, as ... in formalized testimonial such statements contained confessions,” affidavits, testimony, implicate depositions, prior Clause) J., (Thomas, J., by Scalia, concurring in joined Confrontation Crawford, 541 U.S. at concurring judgment) (quoted in the part 51-52,124 1364,158 quotation)); see (ellipses L.Ed.2d at 193 S.Ct. Friedman, Richard The Confrontation Clause Re-Rooted also D. (“Thus, Transformed, just if Sup. Cato Ct. Rev. 458 before door, person trial a a written statement under the courthouse shoved crime, asserting that the accused did in fact commit the that would plainly though government played be testimonial even no official a role statement.”). preparing A alerting declarant who is law enforcement of imminent and expectation much that the danger immediate has less of an state will prosecutorial to make at trial. seek use of her statements United States (8th (911 2005), boy v. Brun Cir. 416 F.3d 703 call from adolescent assault); regarding escalating People into an see argument v. Moscat (N.Y. 2004), (deciding Crim. Ct. 3 Misc.3d that a 911 call “is electronically augmented cry help”); of a Leavitt equivalent loud (9th 2004), (determining v. Arave n.22 Cir. F.3d identifying victim statements of an break-in police attempted they volunteered in perpetrator are nontestimonial because were home”); “a frightening People order to end intrusion into her v. Coleman (“[t]he (N.Y. 2005), conveyed App. Div. 16 A.D.3d information urgently seeking police the 911 for the purpose caller was intervention”; repeatedly emphasized that one “we note the caller his ‘bleeding or both of the real bad.’ This indicates that victims urgent assistance, and primary phone motivation was to call for not to accusation”). anonymous in an Whether reasonable declarant would prosecutorially expect during made a call to 911 to be used statements depend particular the content the conversation and will on being placed. circumstances that led call neighbor to her across speaking We do assume that declarant reasonably seek to backyard expects government fence will oftheir “casual” testimony. people, her For most none use do make such “casual people ever in court. Seldom remarks surface 1364, 158 remark[s],” 51, 124 L.Ed.2d S.Ct. at 308

192, “any anticipation by speaker that the statement will be conveyedbeyond audience, the immediate let alone that it will be used trial,” Mosteller, 39 U. Rich. L. Rev. at 573. In United States v. (6th 2005), Franklin 537, Cir. 415 F.3d the court held that where a declarant Clarke’s friend, statements were to a Wright, they were nontestimonial. “Clarke made the statements to his by friend happenstance; Wright was not a police officer government or a informant seeking to elicit the prosecution statements to further a against Clarke or Frankin. To the contrary, Wright privy was Clarke’s statements as his friend Franklin, and confidant.” 415 545; (6th F.3d at United 2005), States v. Gibson 325, Cir. 409 F.3d 338 (describing statements as nontestimonial where the “statements were not police made to the or in the course of an investigation... official [nor in an attempt] to curry favor or blame”); shift the United States v. (8th (“Mr. 2004), 832, Cir. 368 F.3d 838 n.1 Rush’s comments Manfre were made to loved ones or acquaintances and are not the kind of memorialized, judicial-process-created evidence of which Crawford (8th speaks”); United 2004), States v. Lee 637, Cir. 374 F.3d (“Kehoe’sstatements to his mother implicate do not the core concerns clause”). Likewise, confrontation many state courts have been apt less to conclude that statements made to personal acquaintances See, (Cal. are e.g., testimonial. People v. App. 2004), Cervantes Ct. Cal.Rptr.3d 774, 777, (deciding 782-83 that statements made to a neighbor from whom sought the declarant assistance, medical which implicated described murder and others, the declarant and were not any testimonial under provided ofthe formulations Crawford)-, State (Conn. v. 2004), Rivera 844 A.2d (determining 201-02 that a statement made to the nephew declarant’s describing a botched robbery-turned-murder by undertaken the declarant and accomplice (Ga. nontestimonial); 2004), Demons v. State 595 S.E.2d 78-80 (holding that a statement made to the declarant’s indicating co-worker the declarant’s bruises came from beatings inflicted his nontestimonial). partner domestic whom he feared would kill him was Carter, In State v. MT 326 Mont. 114 P.3d we held that the weekly field reports certification that the state introduced to show that the functioning Intoxilizer 5000 was properly when it was administered police, were nontestimonial. We reasoned that the reports offense, were “not substantive particular evidence of a but rather are foundational necessary evidence for the admission of words, substantive In evidence. other reports certification are nontestimonial in they foundational, nature in that are rather than (internal omitted). Carter, substantive accusatory.” citation against” the Amendment, itself, only to “witnesses extends Sixth defendant, purposes for foundational provided Thus, “against” the while the author of the defendant. evidence reasonably anticipate reports that the would reports certification could court, “not by reports, in a those because substantive be used or offense,” to See of were held be nontestimonial. particular evidence 195-96 541 124 S.Ct. at 158 L.Ed.2d at U.S. (business nontestimonial); are United States v. Cervantes-Flores records (9th 2005), (immigration 421 831-34 records Cir. F.3d (6th 2005), nontestimonial); v. Cir. 2005 WL United States Garner nontestimonial). (medical 2175907 records (unpublished) rationales, together generally, these when declarant Bringing ¶23 governmental agent, to a her knowingly speaks police officer or If, however, had are testimonial. the declarant presumed statements only that her statement would serve to avert objectivereason to believe danger agent mitigate an imminent or immediate and who or evidence, no intent to create the statement received statement had Alternatively, nontestimonial. unless the declarant presumed to be used in had clear reason to believe that statement would be court defendant, her against the statements to a non as substantive evidence are governmental agent nontestimonial.3

HI. Debra Mizenko’s Statements at Issue of appeal presents by three instances statements Debra Mizenko’s ¶24 Mizenko, appear not at trial and whom Mizenko was unable to who did (2) (1) neighbor Grove, Debra’s to her Dawn cross-examine: statements (3) dispatcher King, statements to 911 Tami and Debra’s Debra’s Buennemeyer. Deputy statements to to argues allowing that the court erred in Dawn Grove Mizenko drinking had was

testify that told her that Mizenko been and Debra her; King testify trying allowing police dispatcher to hurt Tami had tape, particular that Mizenko as to contents the 911 down, out; allowing hit hair and in pulled Debra her and her pushed easy being relatively apply, approach, this We note that addition Mosteller, apply whereby approximates depending proposed burdens Professor different speaks that a on the declarant to: the defendant must show statement whom testimonial; clearly exclusively private or intended to be made to a the by received Mosteller, individual was government agent prosecution to a was intended must show that a statement made purpose government agent and that the who the declarant for a non-testimonial prosecutorially. producing a to be was not statement used statement “objective 624. an reason to believe” Rich. L. Rev. at We favor U. proposed “declarant’s intent” standard because standard over Professor Mosteller’s except difficulty divining an practical the intentions of absent declarant the reference (i.e., they reasonably expect). they believe should to what have reason to what Buennemeyer testify told

Deputy that Debra him that on the the hair pulled during floor was hers and had been out the altercation with Mizenko. issues, In these discussing State, be noted must that the

through King, witness offered the 911 taped conversation as evidence. King stated she had tape Since not listened to the and could verify its accuracy, objected Mizenko lack foundation. The court objection. During break, King tape sustained listened to subsequently testify was able that it was accurate representation admitted tape of the conversation. The was then objection without played jury. During taped conversation, for the King Debra told her, down, pushed pulled that Mizenko had hit her out her hair. Since Debra’s taped pulled Mizenko had out her hair objection, King’s Buennemeyer’s testimony admitted were without concerning and, pulling, objectionable, the hair even if was cumulative thus, Kirk, 184, 43, v. MT harmless error. State Van Mont. ¶ 215, 43, Likewise, 32 P.3d King’s ¶ statements that Mizenko pushed error, had and hit her Debra down constitute harmless at most. Grove, [4] As to Dawn neighbor. witness she was Debra’s Debra afternoon, at late out appeared Dawn’shouse one ofbreath and bruised seeking having by on the cheek. She was assistance after been beaten her husband. Given that she was in and a non addressing distress governmental agent, neighbor, objective her she had no reason or anticipate believe that her statement See would used court. Mosteller, (indicating private 39 U. L. Rev. at 573 that Rich. “most statements, accusatory, if being even are not candidates for considered testimonial”). The most reasonable construction of Debra’s statement merely provide to Grove that Debra endeavored Grove with a appearance, that explain dog context would Debra’s sudden with tow face, a freshly neighbor’s doorstep. and bruised on her Her utterance enabled the traumatic a need beating, also Debra to share burden of a by sought the she her evidenced fact that the immediate solace that neighbor provide phone could as well as her desire to her friend Carol any Richard. Tothe extent that the statement can be construed in other manner, Debra, fairly primarily cry it is characterized as a for help. her, having just fled her own where her had beaten home husband Debra sought sanctuary step. Significantly, from to take her next which sufficiently her home remain apparently did not feel secure in own her In phone light there and either friend Carol Richard 911. would very possibility she suffered and the real that Mizenko abuse assault, was remaining and continue her fear of in her home return the cursory that explanation founded. of the circumstances well Debra’s evidence, assistance, not though were request her to Grove’s prompted that her process. Debra lacked reason to believe by judicial created the evidence prosecutorially be used substantive statement would likelihood, use, she anticipated If such in all against Mizenko. she had detail, speaking divulged greater later did when have as she would her, had in hurt King, and indicated that her husband operator fact her merely trying Accordingly, to hurt her. statement that he was not and of Dawn Grove’s was nontestimonial the admission to Grove confrontation hearsay testimony did the clause. not offend remarkably a Ruling admissibility of made in on the situation, Supreme recently Court rendered similar the Colorado mirrors that our conclusion that Debra’s statement to Grove decision (Colo. 2005), 121 In v. P.3d Compan People not testimonial. was unanimously4 the the Colorado Court affirmed admission shortly at hands suffering statements made a woman after abuse the During heated describing of her husband and that abuse detail. husband, victim, crying, had called her argument with her while Vargas up. at pick Compan, friend and asked her to come her 121 P.3d later, victim, “subdued, twenty very quiet now 877. About minutes already her again Vargas, reported and sad” called husband had her, requested a ride. at Another again Compan, hit 121 P.3d Vargas away elapsed fifteen minutes before arrived whisk victim ride, victim, Vargas’s During to the secure environs of home. nails, shaking crying, her biting explained her who stomach, her, her her punched “slapped pulled husband had kicked and hair, Compan, her 121 P.3d 878. When thr[own] wall.” house, recounting they Vargas’s arrived at victim continued eventually did Vargas police. to call victim assault asked testify at 878. The Colorado Court Compan, not at trial.5 P.3d postulated of “testimonial” considered each of three formulations unanimously Court and concluded victim’s any did fall within of them. Vargas excited utterances (“the made statements were not Compan, 121 P.3d 880-81 victim’s objective reasonably which lead an witness under circumstances would 4 concurred, they agreed, specially but without further Justices Coats Kourlis Compan, elaboration, not testimonial. 121 P.3d that the victim’s statements were 5 attorney Incidentally, appointment to the district the victim had made with Compan, formally accusation, up appointment. 121 for the recant her but did show P.3d at 878. to believe that statement would be available for use at a later trial. Rather, friend”); speaking informally the victim was to her see also Mosteller, (indicating 39 U. Rich. L. Rev. at 544 under proposed that his ascertaining method testimonial, for whether a statement is “the Compan statements patterns and similar fact would not be testimonial”). Furthermore, considered the Colorado Court concluded constitutionality “the ofnontestimonial statements is controlled the federal confrontation set forth in Compan, clause as Roberts.” (citing P.3d at a litany of cases from federal circuit courts and state conclusion). supreme courts have reached the same dissent, As to the windmills jousting Justice Nelson his making. II, own He relies on Article Section 24 of the Montana Constitution, theory argued by which he admits was not defendant, testimony operator he focuses King on the of 911 Buennemeyer Officer acknowledging testimony, without that their if objectionable, the 911 tape was cumulative since itself was admitted objection.6 interpretation without The dissent proffers tortured of this opinion by insinuating that the Court’s definition of “testimonial” only encompasses government agents. Contrary statements made mischaracterization, the dissent’s the Court has afforded defendant greater protection from made government agent, by statements to a presuming that such are Although statements testimonial.7 “[vjarious Supreme Court identified three of the formulations of ... exist,” ‘testimonial’ it explicitly day [that] “[left] for another any spell out a comprehensive definition ‘testimonial.’” effort 51, 68, 1364, 1374, Crawford, 541 U.S. at 124 S.Ct. at 157 L.Ed.2d at added). (emphasis Justice Nelson’s painstaking efforts “formulating” comprehensive has him definition “testimonial” led simply adopt proffered formulation to the Court the National Lawyers-the Association of Criminal Defense broadest of the extant 6 Arguably, testimony any and also as it Grove’s was cumulative insofar asserts wrongdoing by only drinking Mizenko. Debra told Grove that he had been husband trying however, recording, to hurt her. The 911 includes statements that Mizenko Debra, pulled ground. Certainly, pushed had hit out her hair her to such acts Accordingly, attempts constitute is to hurt Debra. statement additional Grove drinking-no person as that Mizenko had been crime for a such Mizenko who has age majority. obtained the determining likewise our method whether a dissent mischaracterizes identify beliefknowledge/purpose” statement as “a test. we do testimonial While potentially suspect being declarant’s Sixth motivation of concern drafters of the Amendment, depends we a test on the declarant’s have announced expectation reasonable at the time a statement is made.

313 tacit the Court’s by Crawford-despite acknowledged formulations from Finally, quotes Justice Nelson warning against doing so. by after Mizenko had been Impact Statement submitted Debra Victim statement, however, This until submitted tried and convicted. trial, evidentiary admitting propriety no as to the after and has value Moreover, statements, guilt. nor toas Mizenko’s Debra’s various resonant, Statement, rhetorically suffers from Impact though Victim hearsay testimony in the that was the flaws that Justice Nelson decries inability to oath, inability and assess admitted-lack of to cross-examine opportunity for reflection and ample Debra credibility-provides fabrication, to represents premeditated, attempt a conscientious testimony. provide a Many state courts have considered whether statement made friend, family acquaintance a member or

by the victim of crime to crime, describing identifying both, is testimonial. perpetrator disagreement, authority Despite supports Nelson’s extant Justice statements, if position that such even made to loose Court’s unless are had clear reason acquaintance, nontestimonial declarant See, they prosecutorially. City used Salt e.g., to believe that will be Lake (Utah (statements 2005), Ct. 2005 UT 24 App. App v. Williams ¶ by by identifying the deceased to a friend name perpetrator victim indicating that to kill her he had threatened held nontestimonial that it they expectation because were issued “with no reasonable would (Mo. legal App. 2005), proceeding”); Kemp be used a later State v. Ct. (statements by *4 her neighbor, 2005 WL 2977790 at the victim to assistance, boyfriend seeking her gone whose home she had holding hostage “[e]ven her held gunpoint had been nontestimonial (Ind. reading Crawford”)-, v. State Ct. under Wallace broadest (statements by 2005), murder App. 836 N.E.2d 996 victim identifying response questions posed by killer in an unknown his civilian, “‘in EMT, and a held because not taken nurse nontestimonial (citation omitted)); Bray eye significant with an towards trial’” part... 2005) 741, 746, 2005 WL 2317014 (Ky. v. Commonwealth 177 S.W.3d (statements victim by indicating to her that she was at *3 murder sister her home held for life and that defendant was outside of afraid her formulation); third and broadest nontestimonial even under Crawford’s (statements (Miss. by 2005), sexual Foley v. 914 So.2d State indicating that defendant forced examining physician assault victim nontestimonial); held perform oral and other sexual acts her to sex (Mass. 2005), N.E.2d 559-62 v. Commonwealth Gonsalves (assault by stating that her response questioning her mother victim’s hit her held breathing boyfriend had constricted her nontestimonial; person a reasonable in the victim’s position would not “anticipate being [prosecutorially]”; statement’s used the mother’s purpose procuring statements “was understand what had (Tex. happened, not to prosecution”); establish basis for v. Flores State (statements 2005), App. Ct. S.W.3d infant victim’s mother indicating to defendant’s sister that defendant had hit their infant held nontestimonial; statements were made within hours after child had (Minn. died); Krasky 2005), v. App. State Ct. 696 N.W.2d 819-20 (statements made practitioner victim sexual assault to a nurse describing the assault held nontestimonial under the “third and broadest formulation” in provided because “the examination Crawford conducted, part, least in for the of purpose diagnosis”); medical (Cal. 2005), Rincon Ct. People App. 844, v. 28 Cal.Rptr.3d 858 (statements by indicating victim former gang-member that he had been in the during gun particular shot ankle a at a battle location held nontestimonial the reasonably because victim “could not have (Vt. anticipated” prosecutorial statements); use ofhis State v. Wilkinson (statements 2005), 445, 879 A.2d by 10 victim to defendant’s cousin that indicating pulled gun defendant had on him thought and that he nontestimonial; to kill going defendant was him held were to an relationship “made individual who had no prosecution” presence and police); Herrera-Vega not in the v. State (Fla. (statement 2004), Ct. App. Dist. 888 So.2d by 66 victim to her parents describing sexually defendant her how abused held (S.C. nontestimonial); App. 2005), 823, State v. Staten Ct. S.E.2d 610 (statements victim, by day murder, murder made a his prior to his cousin indicating pulled gun that defendant had on him held any formulations); nontestimonial under State v. Crawford’s (N.C. (statements 2004), 412, Blackstock Ct. App. by 598 S.E.2d hospitalized daughter murder victim made to and wife his before he died, describing robbery detail armed that culminated shot, being unlikely victim’s that [the held nontestimonial because “it is they victim] made the statements under a belief that would reasonable (Wash. prosecutorially’); 2005), later App. be used State v. Ct. Walker (statements 935, by 118 P.3d 34-35 victim of sexual assault ¶¶ incident, describing identifying perpetrator given nontestimonial; response by her held “the questioning mother exchange [daughter] [mother] and was that of a conversation between child, more”); parent upset nothing between a concerned and an State (Wash. (statements 2005), v. App. by Moses Ct. 119 P.3d 22¶ treating physician describing victim of domestic abuse made to a held beating identifying perpetrator nontestimonial because to Dr. her statements have “reason believe did not victim trial”). After an exhaustive subsequent used at a would be Appleton only find two instances could Crawford, we applying review of cases to a individual private statement a court held that a victim’s when (Ill. 2005), 823 N.E.2d App. Ct. See In re E.H. testimonial. grandmother, to her (statements, ofsexual assault made child victim held testimonial by defendant describing perpetrated the sexual abuse identity” concern “the fault the statements because (Ill. 2004), App. Ct. 815 N.E.2d In re T.T. perpetrator); (statements treating physician sexual assault to made victim of pain she physically injured and explain how she was however, identifying nontestimonial; her statements held experienced testimonial). held perpetrator the defendant as the the excited dissent, arguing that has eradicated Crawford cases, with too broad hearsay paints in criminal exception utterance hearsay exceptions does disallow the use of Although a brush. Crawford statements, hearsay reliability as the basis to admit based on indicia of testimonial statements which violate it does so in the context of right to confront witnesses. does Sixth Amendment they the rules of evidence as relate to expressly impliedly supersede 124 S.Ct. at nontestimonial evidence. See 541 U.S. (“[wjhere issue, hearsay nontestimonial is at 158 L.Ed.2d at 203 design to afford the States wholly it is consistent with the Framers’ Roberts, does and as flexibility development in their law-as from approach exempted such statements Confrontation would In of nontestimonial scrutiny altogether”). Clause the wake standard, hearsay analyzed reliability to the Roberts or pursuant Mosteller, rules of simply compliance to ensure with the evidence. 617, still lower courts should (“[presently, 39 U. Rich. L. Rev. hearsay did system’ the ‘old to non-testimonial because apply Crawford (1997), area”); Agostini v. Felton Roberts in this see also overrule 1997, 391, 203, 237, (quoting 138 L.E.2d 521 U.S. 117 S.Ct. (1989), Inc. 490 U.S. Quijas Express, v. Rodriguez de Shearson/Am. 526) (‘“[i]f 1917, 1921-22, 104 precedent a of 477, 484,109 L.E.2d S.Ct. case, yet to rest on appears in a application this Court has direct decisions, Appeals line of the Court of rejected in some other reasons controls, directly leaving to this Court the case which should follow decisions’”).Rather than divine the overruling its own prerogative of afford the implications Crawford, of we will unexpressed dramatic and expressly overrule Roberts and opportunity the first Supreme Court hearsay in pertaining Rules Evidence the Federal to invalidate cases, express preference. criminal as is their recognized, As the Sixth Circuit has dealt testimonial statements and did not the rule disturb that nontestimonial constitutionally they firmly statements are admissible if fit a within hearsay exception they guarantees rooted independent bear Gibson, trustworthiness. 409 F.3d at 338. question thus turn to the We whether Debra’s statement fits 803, firmly exception hearsay

within a rooted Rule rule. (Availability immaterial), M.R.Evid. of declarant enumerates the exceptions hearsay to the rule Montana. Subsection 2 ofthe Rule sets S.M., 11, exception. forth the “excited utterance” In Matter 2001 MT 102, 213, 304 Mont. 19 P.3d a child had seen her mother’s abusive boyfriend building outside of a and subsequently told a social worker frightened. of S.M., that she was Matter 19. We found the social ¶ testimony relaying properly worker’s the child’s statement was relating startling admitted as an excited utterance event of seeing of S.M., her abuser. Matter 24. noted that the social worker We ¶ tightly grasping very the child her foster a observed mother’s arm “with frightened eyes.” of S.M., Presumably, lookin her Matter relied we ¶ appearance support on this observation of the child’s our unstated conclusion that the child remained “under the stress of excitement” expressed Hamby, when she her fear. In State v. 1999 MT hearsay Mont. 992 P.2d we concluded that statements were properly exception “[t]he admitted under excited utterance because suggest Betty [the victim’s] record does not distress once subsided questions, they Hamby, asked her even when were in the bathroom.” 29; (1995), 451, 454, 458-59, seealso State v. Graves 272 Mont. 901 P.2d 549, 551, (indicating 554-55 that a victim’s statements to an rape anonymous “shortly 911 caller made after defendant left” her home and utterance); crying qualified while she was still as an excited State v. Cameron, (holding 2005 MT 326 Mont. 106 P.3d 1189 that a sobbing to her sister related to a sexual assault that victim’s statement utterance under had occurred one or two hours earlier was excited M.R.Evid.). 803(2), Rule It is clear from the cases cited above that a and demeanor can indicate that the declarant appearance declarant’s by startling excitement caused event and remains under the stress of determinative of that stress has subsided. lapse oftime is not whether case, In the statements to Grove were made present Debra’s breath, visibly upset the assault while she was out of short time after statements, made and had a fresh wound on her face. Since Debra’s event, clearly under stress caused fall within while she was still under Rule firmly exception rooted excited utterance 803(2), M.R.Evid., admitting the court did not err in them. Affirmed. WARNER, MORRIS and GRAY, JUSTICES

CHIEF JUSTICE RICE. concurs.

JUSTICE WARNER further address I wish to opinion, I in the Court’s Although concur following scenario: present I

several issues. just I served with Jones, calling I’m because was Mary Smith: Mr. in the against my husband testify Am I to subpoena. supposed trial? spousal abuse Monday Yes, Mary. The trial starts right

Prosecutor Jones: that’s asking you I’ll to tell a.m. at the courthouse. be morning 8:00 he came home Harry you last October when jury how beat game. drank from the football over, I thinking it and I’ve decided

Mary Smith: Look. I’ve been going prison he’s not to testify. Harry don’t to told me that want Then, of his friends night Harry couple last and a because of me. my testify me that if I one of them will break got me alone and told they I at the courthouse legs. They up also said that if even show much she my daughter take and she won’t be worth when will - they’ll do it. guys, I these and I believe them comes back. know just thought you I I’d let coming testify I’m scared. I’m not to call you know so can off the trial. Mary. Harry’s third

Prosecutor Jones: I can’t do that This is got You’ve spousal going prosecute. abuse offense. We’re you you’re there. It’s a court order subpoena required you up. if contempt can be held in don’t show going testify. I don’t Mary telling you Smith: I’m I’m not there, I stupid care some court order. won’t be particularly about thing. forget so the whole testimony can’t Mary, your But we

Prosecutor Jones: without that we need Harry. Supreme State Court has told us convict Our your neighbor testimony. your cannot use statements to your We you your use statements when Ginny fight, after the and we can’t testify Officer Brown about what called 911. For sure we can’t have testify can’t there, and the ER doctor you got told him when he prove I to the Court you told him either. can’t even about what you you unless show really friends threatened Harry and his come come, you; you and if don’t got protect we can up. You’ve you I’ll have to have arrested. But, say. he’s Harry you me that’s what would

Mary Smith: told I’m day years, 24 hours a you protect can’t me I’m of town my daughter. out going Harry’s let friends at now, you’ll me, find I you never and don’t care what threaten me - I’m coming. Bye. [Click.] with not is, course, This colloquy of the counter-point thoughtful ¶37 dissent I disagree.1 analysis with which must The dissent’s historical of instructive, the of a defendant in a criminal case is and points to problems that must be faced in modern prosecutions. my criminal In view, however, ignores victim; it the of cynical, interests the takes too dangerous, approach system and of an justice; our of criminal and misinterprets Crawford. give The dissent fails to sufficient consideration to the interests of recognizes

witnesses and victims. The importance Court the critical of However, the Confrontation dialogue presented Clause. as the I have illustrates, above an accused must not be to hide allowed behind the by intimidating Constitution witnesses. It would be naive to assume so, that defendants given opportunity. would not do if the It takes little imagination picture jungle of fear that created if the would be rationale that is proposed by adopted. my the dissent is In view it would intolerably offense, become more dangerous to be the victim of an or to any case, be a in if witness criminal the Confrontation Clause is interpreted prosecutions to mean that cannot be maintained if witnesses, reason, trial, for appear whatever do not which is what Lininger, Prosecuting the dissent seems to advocate.2See Tom Batterers (2005) (65% Crawford, prosecutors 91 Va. L. Rev. of After surveyed California, Oregon, Washington “reported in that victims jurisdictions during of domestic in their violence are less safe than foregoing dialogue is not fanciful. Some research has shown approximately domestic violence cases. Tom government prosecutions of victims decline in 80% to assist Lininger, Prosecuting Crawford, Batterers 91 Va. L. After (2005) (“The why cooperate Rev. prosecution 768-769 reasons victims refuse to with the manifold, among reprisals by are chief but them is the risk of batterers. study retaliatory many One found that threaten half of all batterers violence as cases, percent actually again during and 30 of prosecution.”). victims batterers assault their predisposition phase potential safeguard majority As a noted the rule of forfeiture Crawford wrongdoing. Crawford, 541 U.S. at 124 S.Ct. at 158 L.Ed. at 199. This was 804(b)(6), party codified in FRE engaged which admits “offered that has to, did, acquiesced wrongdoing procure the that was intended 804(b)(6) unavailability Application complicated. Rule See U.S. v. of the witness.” (2nd 635,653-654. states, 2001), adopted by only Dhinsa Cir. 243 F.3d It has been a few However, heightened adopted and has not been in Montana. because has Crawford importance will threaten the federal testimony, probability that the accused of five and therefore increased the 804(b)(6) witnesses, application potential may FRE see increased now courts, respect hearsay. Lininger, 91 L. at 808- with to testimonial Va. Rev. decision.”). preceding era the government officers premise the dissent’s disagree I also justice In our unfairly convictions. zeal to obtain run amok in their

will all law enforcement attorneys, impliedly system, prosecuting Courts, and even citizens public trust. occupy position personnel, to be honorable rely public these servants must on criminal defendants they litigate and for behalf community on whose for advocates both they integral part. are an system of which justice unscrupulous possible gainsaid that It cannot be cheat, connive, and abuse officials to government or other prosecutors Indeed, it the intent of unfairly obtain a conviction. system discretion of these individuals. to limit the the Framers However, I do L.Ed. at 202-203. 67, 124 S.Ct. at to, inevitably abuse prosecutors as the dissent seems presume, Constitution, and connive offices, uphold their oaths to their violate appear need not complaining that a witness to manufacture evidence so public undermine confidence general at trial. Such accusations justice. implicit There are system entire of bring question into our by the elective government imposed officials prosecutors checks on in this bar, and the courts. Such is evident system, legislature, the the for defendants today, providing protection Court’s decision hearsay. testimonial that are out of court statements It is clear that those

¶41 the Confrontation objective” testimonial the of “primary in nature are 53,124 158 L.Ed. at 194. 541 U.S. at S.Ct. Clause. otherwise, continue rules we should Supreme expressly Until the Court Mosteller, v. Robert P. Crawford precedent place. left apply Witnesses, Ensuring the Washington: Encouraging and Confrontation (“lower (2005) apply should still courts 39 U. Rich. L. Rev. did not hearsay system’ to non-testimonial because ‘old Crawford area.”). Friedman, scholarly As Professor whose Roberts in this overrule notes, is not “[I]fthe statement majority, work influenced to have been testimonial, should not be deemed so that the declarant Clause should not it, making [Confrontation] acting as a witness not seem reliable.”3 No admissibility, if the statement does its even bar Crawford, the decision language spins the dissent matter how encompass scrutiny to Clause Confrontation does broaden far as goto the dissent is incorrect Thus nontestimonial statements. Principals, Friedman, 86 Geo. For Basic The Search D. Richard Confrontation: (1998). 1011,1029 L. J. applies to assume “that of confrontation to both testimonial statements[,]” analysis and nontestimonial and that the Roberts has inapplicable. rendered been Nontestimonial should be standard, admitted under Roberts which is most often met “firmly hearsay evidence, exception.4 properly rooted” The rules of interpreted, provide guarantees Contrary sufficient of fairness. assertion, firmly rooted exceptions, dissent’s like that for excited utterances, still are valid law. required prove beyond Prosecutors are still their case difficulty gaining

reasonable doubt. The a conviction increases significantly prosecution’s case relies primarily upon where out of Experience jurors give court statements. simply weight shows less hearsay. Douglass, Confronting Accomplice, John G. the Reluctant (2001) (“[J]urors 1797, 1839, L. exposed 101 Colum. Rev. n.180 they receiving goods.”); will know that are secondhand Richard Landsman, Stephan Researching Hearsay F. Rakos & Rule: Issues, Directions, Emerging Findings, General and Future 76 Minn. L. (1992); Crawford, 70,124 Rev. 656-658 S.Ct. at 158 L.Ed. n.l. opinion today provides The Court’s for fair trials of the accused giving Conversely,

while consideration to victims and witnesses. objective extent, dissent’s of protecting the accused to the utmost while intentioned, perhaps adequately well fails to consider how such an pursuit of the Confrontation Clause our interpretation impede would justice imperfect truth and in an world.

JUSTICE NELSON dissents. Jones, Mary calling just I’m I Smith: Mr. because was served with subpoena. supposed testify against my spouse Am I in the husband

abuse trial? Yes, right Mary. Monday

Prosecutor Jones: that’s The trial starts morning asking you at 8:00 A.M. at the courthouse. I’ll be to tell he home jury Harry you how beat last October when came game. drunk from the football over, I

Mary thinking Smith: Look. I’ve been and I’ve decided charges. just Harry I went press don’t want to overreacted because 4 Mosteller, (“Resolving not Rich. L. at 618 Roberts’s future will See 39 U. Rev. impact many cases since the Confrontation Clause was have an on the outcome hearsay, generally easily and under the Roberts test as to most admissible satisfied indeed, reliability analysis admissibility most under and trustworthiness Roberts’s broadly long automatically accepted met a often decided established when the statement -‘firmly hearsay exception.”). rooted’- Harry’s the kids. left me with with his buddies game testify if I jail, the weekend spent since he pretty good been Well, and then.... temper lose his make him mad. He’ll just it will going I’m not the kids. got to think about it. I’ve just it’s not worth I him. I have my husband. love Harry. He’s still testify against to off. testify. Just call the trial him; I won’t you don’t. to live with Mary. Harry’s This is third I that Jones: can’t do Prosecutor or without going prosecute to with offense. We’re domestic abuse there. you’re required to be your help. got subpoena You’ve you if don’t show contempt held in you order and can be It’s a court up. I’m charges and you press I want to

Mary telling I’m don’t Smith: stupid some care about testify. particularly to I don’t going thing. it off. there, forget the whole Call I so court order. won’t happen. sorry, going that isn’t Jones: I’m but Prosecutor don’t need Besides, Court has told us we Supreme our State your got your statements testimony anyway. We’ve your got your statements Ginny, fight, after the and we’ve neighbor, you told testify as to what you called 911. Officer Brown will when testify the ER doctor to fight. may get be able to him about We you him That’s all we you patched up. he what told when about you up or not. the trial show going need. ahead with whether We’re testimony? Thanks you really my don’t need Mary Smith: Oh. So Bye. a bunch. conversation, something that, henceforth, this I no doubt have Police across the State.1 akin, prosecutors’ had in offices

closely will be See, fanciful, e.g., foregoing dialogue Andrew it is not. think the For those who Prosecution?, Washington: Seattle U. King-Ries, v. The End of Victimless Crawford Supreme v. (arguing decision in Court’s L. Rev. 321-28 preserve Washington prosecutions). interpreted “victimless” domestic violence so as to should be King-Ries explains domestic abuse refuse that when victims of Professor abusers, prosecutors proceed “victimless” testify against often their creative, resourceful, response” and effective prosecutions, to the as “a he characterizes which 301,305-06,327. King-Ries, In a victimless dynamics of domestic violence. See rather, largely testify; prosecution on the is based prosecution, does not the victim (as in the case utterances statements as excited the victim’s out-of-court admission of at at King-Ries, personnel. hand), See present impressions, or to medical sense 308-11. constru[ing]” “carefully definition of King-Ries advocates Professor Crawford’s permit use the continued concept context so as in the domestic violence “testimonial” personnel utterances, to medical present impressions, and statements sense excited strength and, thereby, preserve of victimless “the prosecutions in victimless prosecutions.” to longer possible if it were no King-Ries, He at 326-28. submits absence, prosecutors would be case in the victim’s prosecute domestic abuse crimes,” King-Ries, at portion significant violence “powerless of domestic to address domestic “profit [their] own misdeeds because from and defendants would 322 prosecutors already begun

and have modifying their evidence-gathering techniques impact so as to avoid the fully And I expect Crawford2 advocacy that victims’ groups advising will be their clients of this counseling Court’s decision and that whether victims up show trial testify consequence fact, to is of little may, put and in their clients at 3 greater risk of harm. generally violence victim is threatened necessary absent trial from due to the defendant’s action or (Of action,” King-Ries, course, below, explained at 325. as will be it is not testify trial, long legal for the victim to as as she is unavailable prior opportunity instance, sense and the defendant at a had has to cross-examine her-for pre-trial proceeding deposition Furthermore, preliminary hearing. such as a or a by if repercussions the victim’s absence from trial were due to threats the defendant of him, appear testify against should the victim and then his Crawford, to confront the victim extinguished equitable grounds. would be on 124 S.Ct. (“[T]he (which by wrongdoing accept) extinguishes at 1370 rule of forfeiture we essentially equitable grounds.”).) confrontation claims on Mosteller, Washington: Encouraging Ensuring See Robert P. Crawford v. (2005) Witnesses, (hereinafter, 39 U. Rich. L. Rev. Confrontation of (“[T]he “Mosteller, Encouraging Ensuring’) practices jurisdictions in some having investigating videotape shortly victims make statements to officers on after the very prosecution, produce crime were once useful but now inadmissible prosecutors develop testimonial statements. Police and are certain to alternative (footnote investigative Richard D. attempt impact.”) omitted); methods in an to avoid Crawford’s Friedman, “Testimonial,’’ Grappling Meaning with the 70 Brook. L. Rev. (draft) (forthcoming 2005), http://www-personal.umich.edu/~rdirdman/Grapplingl.pdf (hereinafter, “Friedman, Grappling’), af (“Some police at 3 have led to been believe that knowingly person statement[] even if a made to them accuses a of a crime it is not product interrogation begun police [the] testimonial unless of a formal after the have police determined that a crime has been committed. And so we have seen that prosecutors accusatory beginning have done their best to secure statements without necessarily Friedman, interrogation.”); Grappling, what would be deemed a formal at to (The response idea “that a statement is not testimonial unless it is made in “ governmental police questioning,’ interrogation,” restrictively which some courts define as ‘structured “ begun police practices, police [try] ’’has distort as to act in such way prosecutors argue police can later that statements made to the not in were (“Since response many interrogation.”). Friedman, Grappling, See also at 20 essentially they operating [T]he courts have continued did before.... National Family Judges published journal Council of Juvenile and Court in its Juvenile Justice Today by judges saying essentially ignore an article two Florida that courts could by invoking exception against hearsay.”). the excited utterance to the rule Against See Brief of Amicus Curiae Montana Coalition Domestic and Sexual (“Victims [defined Violence at 3 of domestic and/or sexual violence “to include amicus physical perpetrated exerting power all emotional and/or an individual abuse participate prosecution individual”] control over another efforts. While often recant or refuse to myriad participate there are reasons victims choose not to prosecution them, many participate of those who have battered choose not to because ‘Many of the risk of further harm from their abusers. victims who become witnesses in subject threats, retaliation, criminal cases their abusers are and intimidation Often, noncooperation prosecutors.’ danger to coerce their when s/he the victim is in more (citations omitted). participates prosecution.”) in the criminal and footnote (“A Friedman, providing Grappling, See also at 11 rule that a statement is not directly government agents testimonial unless it is made would have some may freely use Indeed, majority opinion, State according to party hearsay up if it come with a third statements can victim’s if government agent, persuade or it can was not a known witness who or statements served to avert the trial court danger, recipient immediate that the mitigate an imminent or evidence, and had no intent to create that the statements notwithstanding sufficiently trustworthy are admitted reliable feat, inability to cross-examine the victim 4-not a difficult the accused’s such, reason compelling demonstrates. As there be no this case will Family testify for Assault to at the trials victims of Partner or Member fact, if of this to alleged theory of their abusers. In case is followed conclusion, its likewise no reason for victims of logical there will be assault, robbery, assault, or, rape, attempted sexual homicide for matter, any involving physical crime and/or abuse “emotional by an and another perpetrated exerting power individual control over individual,” Against Brief Amicus of Curiae Montana Coalition n.l, testify Subpoenas Domestic and Sexual at 3 to Violence either. not paper they victims will be worth the are written on. worse, circumstances, Even and under the same there will no subpoena for the

longer compelling be reason State to even the victim. Why Why put up equivocal testimony?5 with the risk of recanted and consequences only plausible that I it is not but believe are intolerable.... I think courts, virtually private that, agent by government inevitable if a standard is established [many] rights organizations way provide will victims’ a comfortable for prosecution having complainants accused: “Make present never have to look the accused in the to create evidence for use without to confront bring go tape videotape, then on court and and vacation. We’ll to testimony worry, you necessary get tape jury. to the Don’t shown eye, you questions his never have to answer attorney, you making and to take How can of that don’t even have an oath.’ testimonial?”). videotape not be considered 803(l)-(4), present impression (setting See Rule M.R.Evid. forth the sense (803(1)), (803(2)), mental, then-existing physical or excited utterance emotional (803(3)), purposes diagnosis and medical treatment condition statements for rule). (803(4))exceptions hearsay to the (the victim/declarant) instance, hand, told the In the case Debra court,” charges going investigating she pressing officerthat “was no and was not she informing prosecutor him that to the trial sent a notarized statement before way. Impact injured any completed later a Victim’s Mizenko had not her in She (in expressed Investigation) in she connection the Pre-Sentence which Statement ignored” completely her “seems to have been frustration that reiterated that Mizenko “did not cause notarized statement injured. bodily injury I The to me. ... was letter, my dog.” she rugburn referred to an “inebriated playing In an chin a result of w/the attached on tape-recorded recording” (presumably her surprise spite of her operator) conveyed had been convicted in 911 “true” notarized statement: Mizenko guilty jury after could him “I still cannot believe the find

subject the victim to the additional having trauma of to confront alleged perpetrator face to face and deal with his or her attorney’s cross- Why put examination? the victim risk contempt if he or she participate “refuse[s] to in prosecution efforts” or “choose[s] not to participate prosecution,” Brief of Amicus Curiae Montana Against Coalition Domestic and Sexual Violence at 3? Better to simply shift the proof burden of to the accused-allow the State to introduce the victim’s out-of-court statements and force the defendant to subpoena the victim in order prove his innocence. If the victim refuses or trial, up chooses not to show for the so what? The State’s case secure. And the threat of contempt?6 prosecutor Even if the pushes the issue and even if Judge the District is willing to make the non- testifying-victim martyr by holding her or him in contempt, most victims still will more than happy be to take a tongue-lashing from the pay court and a small testify, especially fine than since doing so is now an option practical Indeed, as a matter. I expect that most abusers will more than happy pay doing the fine if keeps so their accusers off the witness stand. majority opinion and, thus, misinterprets misapplies trial, confrontation. The evidence admitted in Mizenko’s over objection,

his consisted of statements his wife Debra three persons: (“Grove”), Dawn neighbor; Grove Mizenko and Debra’s Tami King (“King”), operator; Deputy Buennemeyer my seeing true statement. I did not think that court would even held after the be (According record, jury during statement had been read.” to the asked deliberations prosecutor, to see the letter Debra had written to the but the District Court denied the jury’s letter, request.) Impact Also in her Debra lamented that the Victim’s Statement my “couldhave exonerated husband” had she asked to fill it out been “beforethis whole finally, lifestyle, court fiasco.”And she when asked whether this incident has affected her stated, my statement, my “Yesbecause of inebriated and false husband has lost his job.” entirely contrary if hearsay against These assertions are statements admitted Thus, subjected examination, Mizenko at his trial. the had been direct and Debra cross prosecutor Indeed, would have had to contend he with Debra’s recantation. acknowledged dining closing argument: this fact his “DidI Mrs. Mizenko here want testify, you suspect might you, yeah, suspect bet I did. Did I she I what have told what house, might you she have told us. But know at the time she went over to Dawn Grove’s going tape you to, just happened and we are to send a back in with to listen it had Grove, Hence, having [Mizenko] what she told Dawn did.” than what rather jury persuade 2003, conflicting one of of the believe two versions events of October prosecution by contrary supply jury-unhampered was able to testimony-with which version was more supported jury the one version that its case. The never had to assess Court, reliable; overruling hearsay the District Mizenko’s objections, did that them. 3-l-501(l)(j) 45-7-309(l)(c), §§

6 See MCA. never had Mizenko investigating officer. (“Buennemeyer”), the Thus, affirming statements. these to cross-examine opportunity majority testimony, hearsay of this admission District Court’s Mizenko’sfundamental denial of District Court’s perpetuates by the him,” guaranteed with witnesses “tobe confronted Constitution, and his even the United States Amendment of Sixth against him the witnesses right “to meet fundamental greater face (emphasis Constitution II, ofMontana’s Article Section under face” added). Approach I. Supreme United States grounded in the majority opinion (2004), 36, 124 541 U.S. Washington v. decision in

Court’s Crawford change in Sixth effected a sea L.Ed.2d which S.Ct. However, majority misapplied the has jurisprudence.7 Amendment severely and, doing, has decision holdings of the core ¿so Crawford rights persons and cross-examination diminished the confrontation happen in Montana is in this state. That this should accused of crimes tragic. especially of which I may analyzed perspectives, from two both

¶51 Crawford First, analysis of constitutes begin I with an what opinion. cover in this statement, meaning of that term as set focusing on the “testimonial” During it cites. this and the authorities to which forth in Crawford discussion, majority’s (mis)interpretation I address the also definition of and, particular, its erroneous Confrontation Clause “testimonial.” judice the case sub a definition apply I next to the facts of and the Confrontation that is faithful to both

“testimonial” Crawford at issue by the Framers. If the evidence Clause as conceived I is-then under this definition-and conclude here is “testimonial” that.it categorically barred unless Debra its use at Mizenko’s trial was jurisdictions implemented especially violence cases. “As This is true domestic prosecuted in violence policy judgments arrested and domestic that abusers should be victim, developed prosecutors methods regardless of the immediate cases of wishes prosecutions on the introduction of prosecutions. These were based for ‘victimless’ treatment, utterances, past recollection hearsay through recorded, for medical excited [(1980), provision. special exceptions, Ohio v. Roberts and the catch-all automatically 56,100 2531,] satisfied Clause to be S.Ct. allowed the Confrontation U.S. for ‘firmly utterances, rooted’ and hearsay exceptions, that were such as excited disrupted unavailability. domestic violence showing has required no ‘stop sign’ any in front of degree It erected a prosecutions other area. to a not seen evidence, to treat excited utterances its reluctance which combined with most of this great confrontation, disruption and exception caused massive has as a historic to (footnotes 2, Ensuring, supra Mosteller, Encouraging note at 607-08 uncertainty.” omitted). testify “unavailable” to prior opportunity Mizenko had a cross-examine her. Thus, I disagree majority’s because with the determination that hearsay nontestimonial, statements admitted at trial were I then

address testify whether Debra was “unavailable” to and whether prior opportunity Mizenko had a respect cross-examine her. With (1) requirement, the former obligation the District Court failed in its (in hold the State prove to its burden to Debra unavailable sense) (2) legal failed to specifically question rule on the unavailability. Thus, Debra was not “unavailable.” respect With requirement, latter there is no dispute any that Mizenko did not at time an opportunity Accordingly, have to cross-examine I Debra. conclude requirement that neither Court, was met and that the District therefore, in admitting erred Debra’s statements. Finally, I take up perspective the second from may which Crawford analyzed, focusing on the Supreme rejection reliability Court’s ofthe (1980), 56,

and trustworthiness framework Ohio v. Roberts 448 U.S. 2531, 597, and, 100 S.Ct. 65 L.Ed.2d in particular, rejection the Court’s very rationales upon which it had relied in v. White Illinois (1992), 736, 116 502 U.S. 112 S.Ct. upholding L.Ed.2d hearsay testimony admission of as an excited I utterance. concludethat the admission of statements based on the excited utterance exception longer permitted is no unless the declarant is “unavailable” prior and there was a opportunity for the accused to cross-examine the declarant. Right

II. The to Confront subjects There are upon ... which this Court and other courts few nearly expressions have been more unanimous than in their ofbeliefthat and cross-examination is an essential and of confrontation requirement the kind country’s trial which is this fundamental offair (1965), goal. constitutional Pointer v. Texas 380 U.S. 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923. breathes new life into the admonition ofPointer. Before

¶56 Crawford turning however, acknowledge it is critical to first II, guarantees persons Article Section Constitution Montana’s greater rights accused of crimes even of confrontation cross- very examination than does the Federal Constitution. It is unfortunate recognize pursue that the defense did not this fact and a claim under ofconfrontation Nonetheless, right that the given II, 24.8 Article Section Montana under the right this right, I will address fundamental is a of my discussion I Constitution, proceed will after which Crawford. in Montana Right of Confrontation A. The 24, “[i]n all II, provides that Section Article pertinent part, In to meet the right... the accused shall have prosecutions criminal added.) Clark, In State v. (Emphasis him against witnesses face face.” this interpreted 964 P.2d we 290 Mont. 1998 MT admission under report crime lab ofa state held that the guarantee and 803(8), Rule hearsay exception, see reports public records technician who wrote M.R.Evid., presence of the requiring without right to confront constitutional the defendant’s state report, violated 25,30. based Clark, Importantly, accuser. See ¶¶ and cross-examine his Constitution, Montana’s held that language of our we plain on the than does greater protection the accused provides Clause Confrontation Clark, 20-25. We Amendment. counterpart, ¶¶ the Sixth its federal stated that

[ujnlike text of Montana’s counterpart, federal its right the accused’s specifically guarantees Confrontation Clause As we noted in against him face to face.” “to meet the witnesses 590, 592, 257, 260, (1991), 815 P.2d Young State v. 249 Mont. analyzing subsequent cases Constitution and “[t]he 1972Montana abundantly clear that full Clause have made it the Confrontation right ofconfrontation.” aspect a critical ofthe cross-examination is in the Moreover, recognized rights that the contained we have to an rights guaranteed Rights, which include Declaration rights. fundamental prosecution, in a criminal are person accused 287, 299, (1996), 911 P.2d State 275 Mont. Wadsworth v. 1171-72. (second

Clark, original). alteration in 22¶ cross-examination, importance We then went on to discuss by the Confrontation Clause: protected is which system justice hallmark because ofour is the Cross-examination witness, his or the demeanor of a things truth. Such produces testimony, hesitancy giving body language, her and a witness’s following II, in the Section in Mizenko’s brief to Article The citation protection afforded sentence, of the extent itself is an incorrect statement which premise [under] the sixth “It Constitution: basic under the Montana (similar II, 24, Montana to Art. Sec. Constitution amendment Constitution) to the United States effectively defendant when right denied a criminal confrontation is added). (emphasis Appellant Brief for at 6 ....”

often communicate as much to the spoken fact-finder as the words. Clark, Finally, we observed that ¶

[t]he framers of the Montana Constitution appreciated these safeguards and distinguish saw fit to our Confrontation Clause from the United by insuring States Constitution a criminal right defendant the “to meet the witnesses him face to Const, II, face.” Mont. art. 24.§ Clark, 24. point right of Clark is that whatever confrontation the Sixth guarantees crimes,

Amendment to persons accused of Montana’s protects right greater Constitution this to an even extent because the plain language of our “specificallyguarantees Constitution a criminal defendant the to a confrontation with his or her face-to-face added). Clark, (emphasis accusers.” 25¶ Right B. and the Federal of Confrontation Crawford Background 1. allegedly wife, Crawford stabbed a man who tried to rape ¶60 his Sylvia. objection, Over the prosecution introduced-as evidence that the stabbing self-defense, not in as Crawford claimed-a tape-recorded Sylvia statement that during police interrogation. Sylvia had made a testify did not at trial because of Washington’s privilege; marital however, privilege this did not extend to out-of-court statements exception admissible under an the Crawford, rule. See 541 38-40, at 124 U.S. S.Ct. at 1356-58. The State the exception against penal invoked for statements

¶61 804(b)(3) (2003). interest, response, Wash. Rule Evid. In that, argued state law notwithstanding, admitting Sylvia’s statement “confronted would violate his federal constitutional to be with the against Crawford, 40, witnesses him.” 541 U.S. at 124 S.Ct. at 1358 (internal omitted). quotation denying objection, marks In Crawford’s Roberts, the supra. case, trial court relied on Under that the out-of-court statement of an against unavailable9 witness a criminal defendant is if “adequate reliability.” not barred the statement bears indicia of 9 (1986), 387, 106 390, In v. 475 S.Ct. 89 L.Ed.2d United States Inadi U.S. “rejected Supreme proposition the Court the that Roberts a rule that ‘no established showing unavailability.’ the out-of-court statement would be admissible without contrary, of To establishing rather than ‘a revision of the of under wholesale law evidence’ guise Clause, the consistently of the Confrontation we concluded that ‘Roberts must be read answered, cited, question authority the it and its So with the own facts.’ understood, necessary unavailability analysis proposition Roberts stands for the that is a part inquiry challenged of the Confrontation Clause when the White, prior judicial proceeding.” statements were made in the course out-of-court of added) (citations omitted). 353-54,112 (emphasis 502 U.S. at S.Ct. at 741

329 (internal marks 40,124 quotation S.Ct. at 1358 541 U.S. at Crawford, omitted). “firmly test, fall the statement must within To meet this “particularized guarantees or bear hearsay exception” rooted (internal 40,124 U.S. S.Ct. Crawford, 541 at at trustworthiness.” omitted). quotation marks under Concluding sufficiently that statement was reliable Sylvia’s ground-i.e., “particularized guarantees

the it bore latter at 541 U.S. Crawford, trial court admitted it. See trustworthiness”-the 40,124 tape jury the the prosecution played at The S.Ct. “damning that argument evidence” closing referred to it Crawford, 541 refutes” Crawford’s claim of self-defense. “completely omitted). (internal 40-41, quotation marks U.S. at S.Ct. at assault, Crawford, at Crawford of see 541 U.S. jury convicted Washington Supreme upheld at and the Court S.Ct. “reliable,” Sylvia’s see determining conviction after statement was 541 U.S. at 124 S.Ct. at 1357. Crawford, States Court addressed the issue appeal, Supreme On United by Washington with procedure complied whether used courts guarantee prosecutions, “[i]n the Sixth Amendment’s all criminal enjoy right... shall confronted the witnesses accused (alteration against Crawford, him.” 124 S.Ct. at 1357 (internal omitted). ellipsis original) quotation resolving marks In State, Roberts, this at least as question Court overruled applies particular that case to a class of out-of-court statements. 68-69,124 Crawford, 541 U.S. at S.Ct. at 1374. analysis by discussing its law The Court commenced the common development

tradition and Confrontation Clause. See 43-50, history, From this the Court U.S. 124 S.Ct. 1359-63. First, meaning two inferences about the of the Sixth Amendment. drew “the principle Court determined evil at which directed the civil-law of criminal Confrontation Clause was was mode procedure, use of as evidence particularly parte its ex examinations 50, 1363. Crawford, 541 U.S. at 124 S.Ct. at accused.”10 10 the “most occurred in the One of notorious” instances of civil-law examination great Raleigh Crawford, political in 1603. See 541 U.S. trial of Sir Walter treason thought 44,124 long has at “paradigmatic at 1360. Court discussed this trial-which been a S.Ct. The 52, violation,” Crawford, 541 U.S. at 124 S.Ct. at confrontation analysis 1364-during background the historical of the Confrontation Clause: its Cobham, implicated Raleigh’s alleged accomplice, had him an Lord trial, Privy Raleigh’s At these Council and in a letter. examination before the argued jury. Raleigh had that Cobham lied to save himself: were read him; by absolutely King’s mercy; me to excuse cannot avail “Cobham is in the recant, accusing may hope Suspecting that me he for favour.” Cobham would

330 Accordingly, soundly “rejected] the Court the view that applies Confrontation Clause ofits own force testimony, to in-court and that application its to out-of-court statements introduced at trial depends upon the law of Crawford, 50-51, Evidence.” 541 U.S. at 124 (internal omitted). S.Ct. at 1364 quotation Moreover, marks the Court explained, “[t]he constitutional text ... reflects especially acute concern with specifictype statement,” out-of-court which the Court referred to hearsay.* as “testimonial” Crawford, 51, 53, 541 U.S. at 124 S.Ct. at 1365. proposition second supported by history

Confrontation Clause is “that the Framers would not have allowed admission oftestimonial statements of a -witnesswho did not appear at trial unless he was testify, unavailable to and the defendant had had a prior opportunity for Crawford, 53-54, cross-examination.” 541 U.S. at Furthermore, S.Ct. at 1365. the text ofthe Sixth Amendment does suggest may that courts develop “open-ended exceptions from the requirement.” confrontation Crawford, 541 U.S. at 124 S.Ct. at Rather, the Confrontation Clause “is naturally most read aas reference the right law, of confrontation at common admitting only exceptions those established at the time founding.” Crawford, ofthe U.S. at 124 S.Ct. at 1365. exceptions Those “conditioned admissibility of an absent unavailability witness’s examination on prior opportunity cross-examine,” Crawford, 541 U.S. at added), S.Ct. at 1366 (emphases not on amorphous reliability notions of Therefore, and trustworthiness. the Sixth incorporates Amendment those limitations. See Crawford, 541 U.S. at 124 S.Ct. at 1366. Moreover, the Court determined from the historical record that a prior opportunity to cross-examine a “necessary,” “merely and not sufficient, admissibility ... condition for of testimonial statements.” Raleigh judges appear, arguing “[t]he demanded that the call him to Proof here, jury: speak of the Common Law is witness and let Cobham be let him it. my my judges refused, and, despite Raleigh’s Call accuser before face ....” The protestations being “by jury- Spanish Inquisition,” that he was tried convicted, Raleigh was sentenced to death. (alteration (internal Crawford, 44,124 ellipsis original) 541 U.S. at S.Ct. at 1360 omitted). citations necessary “definitely It was not resolve” whether applies only hearsay, Sylvia Confrontation Clause to testimonial since Crawford’s any 61,124 statement was “testimonial under at 1370. definition.” 541 U.S. at S.Ct. However, solely the Court did note that “even if the Sixth Amendment is not hearsay, primary object.” Crawford, concerned with testimonial that is its 53,124 S.Ct. at 1365.

331 words, 55, In other 124 at 1366-67. Crawford, 541 U.S. at S.Ct. to whether a testimonial statement “dispositive” was requirement ways of to establish admitted; merely one several it was could The 55-56, 124 S.Ct. at 1367. Crawford, See 541 U.S. at reliability. rule exceptions general also that while there were Court observed (the year Sixth 1791 Amendment hearsay exclusion of evidence in of ratified), their exceptions of those “covered statements most example, business records nature were not testimonial-for Crawford, of 541 U.S. at conspiracy.” statements furtherance exceptions “[T]here at evidence that were 124 S.Ct. 1367. is scant in a the accused invoked admit testimonial statements 56,124 (emphases at 1367 Crawford, criminal case.”12 541 U.S. at S.Ct. original). law, see 541 prior Crawford, The Court then addressed its case 57-59, 1367-69, that, concluding part, at for the most U.S. at 124 S.Ct. cases) (or, least, at jurisprudence its the outcomes of its had been propositions consistent with the two discussed above and with understanding of Framers’ confrontation: “Testimonial only trial witnesses absent from have been admitted unavailable, has the declarant where the defendant where prior Crawford, had a 541 U.S. at opportunity cross-examine.”13 124 at S.Ct. sum, categorical In sets forth a bar: certain Crawford (1) at a trial

evidence is inadmissible criminal unless declarant (2) a prior opportunity the defendant has had to cross- unavailable and 53-54, 55-56, 59, 68, See 541 Crawford, examine declarant. U.S. 1365,1366-67,1369,1374. “specific type 124 S.Ct. at out-of-court is, minimum, prohibition at a implicated statement” this See “testimonial” of a who is absent from trial. statement witness 541 Crawford, U.S. at 124 S.Ct. at 1364.

2. “Testimonial” Statements day out a any spell “[left] The Court for another effort “ ‘testimonial,’ Crawford, definition 541 U.S. at comprehensive acknowledged were admitted in some The Court that testimonial statements n.6, Crawford, “dying exception. 541 U.S. at 56 under the declaration” See cases However, incorporates exception for n.6. if S.Ct. at 1367 even the Sixth Amendment n.6, declarations, dying generis.” Crawford, “it 541 U.S. at 56 is sui testimonial at 1367 n.6. S.Ct. by wrongdoing, which rule of forfeiture left undisturbed the grounds. extinguishes equitable claims 541 U.S. confrontation on 124 S.Ct. at 1370. 1374; however, did, 124 S.Ct. at nonetheless, it provide a number of insights into what the term means. The Court stated that “[w]hatever covers, else the applies term prior at minimum to testimony at a preliminary hearing, grand before a jury, trial; or at a former and to police interrogations.” Crawford, 68,124 S.Ct. at 1374. We are also told that “[a]n accuser who makes a formal statement government officers testimony,” Crawford, 51, bears 541 U.S. at 124 1364, S.Ct. at plea that a showing allocution the existence of a conspiracy testimonial,” is “plainly Crawford, 64,124 541 at U.S. S.Ct. extreme, at 1372. At the off-hand, other “[a]n overheard remark” and “a casual acquaintance” remark to an are Crawford, nontestimonial. See 51, 541 U.S. at Also, 124 S.Ct. at 1364. falling statements within the hearsay exceptions for business records and statements in furtherance of a conspiracy at the time of framing “by their nature were not 56, testimonial.” Crawford, 541 U.S. at 124 S.Ct. at 1367. As for statements which do not fit within foregoing one of the

examples, provided the Court guidance in the form of three definitions or “formulations” of testimonial statements: parte

“ex in-court testimony is, or its equivalent-that functional affidavits, material such as examinations, custodial prior testimony that cross-examine, the defendant was unable to pretrial similar that declarants reasonably would expect to be used prosecutorially,” Brief 23; for Petitioner “extrajudicial statements ... contained in formalized testimonial materials, affidavits, such as depositions, prior testimony, or (1992) confessions,” Illinois, 346, White v. 502 U.S. 365 (THOMAS, J., joined by SCALIA, J., concurring in part concurring judgment); [and] “statements that were made under circumstances objective which would lead an reasonably witness to believe that trial,” statement would be available for use at a later Brief for National Lawyers Association of Criminal Defense et al. as Amici Curiae 3.

Crawford, 51-52, 541 U.S. at (ellipsis original). S.Ct. at 1364 suggest While these formulations dividing line between “nontestimonial,” identify any “testimonial” and the Court did not of (since defining boundary them as the outer of testimonial statements Sylvia any definition,” Crawford’s statement was “testimonial under 1370). Crawford, Rather, 541 U.S. at 124 S.Ct. at the Court that “[t]hese observed formulations all share a common nucleus and then define the coverage Clause’s at various levels abstraction around of added). Crawford, it.” (emphasis 541 U.S. at 124 S.Ct. at 1364 See (“[Testimonial] 68,124 Crawford, also applies S.Ct. at 1374 hearing, before testimony preliminary at a prior minimum to at a trial.”) U.S. (emphasis added); Crawford, 541 former jury, or at a grand (“Statements in the by officers police taken 124 S.Ct. at at under even narrow interrogations are also testimonial course of added). (The standard”) formulation-asking whether third (emphasis was made would lead under a statement circumstances which would be reasonably to believe that statement objective witness three, while for use at a later trial-is the broadest available to “formalized” materials-is second-tying the definition of testimonial narrowest.) Thus, by to Grove and because the statements Debra examples,14 it is King any do not fit of the aforementioned within abstraction,” necessary “level[] in the case at hand to determine what meaning best Crawford, 541 U.S. at 124 S.Ct. at reflects contemplated “testimonial” as and the Confrontation Clause, fall that formulation.15 Debra’s statements within whether “testimonial,” ascertaining starting point In breadth itself, applies Clause which its terms the text the Confrontation Const, VI. noted against [the accused].” U.S. amend. As to “witnesses above, in- rejected provision applies only this Court the view that trial). (i.e., testimony persons testify against who the accused at court 50-51, time, U.S. At the same S.Ct. however, it clear not all declarants whose out-of- the Court made 14 Buennemeyer category Deputy of Debra’s statements to fit within “interrogations by Crawford, officers.” 541 at 124 S.Ct. at law enforcement U.S. “ any ‘interrogation’ colloquial, in its rather than 1365. The Court used the term n.4; and, legal, sense,” Crawford, n.4,124 541 U.S. S.Ct. at 1365 technical time Debra’s statements were at 53 house, made, Buennemeyer was at the Mizenkos’ investigating charge pursuant had report problem,” to “a ofa Debra’s that Mizenko domestic her, pushed pulle[d] “hit her her hair.” down and ... out 15 meaning addressing regard, previous of In our decision this Carter, 87, 326 427, 114 inapposite. 1001-is v. MT Mont. P.3d “testimonial”-State 2005 acknowledged issue applicability statements at we While Crawford (the 5000), explicitly reports for the we declined in Carter certification to Intoxilizer evidence,” Carter, “attempt precise that “the certification ¶ articulate definition of testimonial even concluding reports are simply at Carter’s trial used they group of statements do not fall within the core nontestimonial evidence because added). address,” Carter, (emphasis ¶ meant which Furthermore, Confrontation Clause was Delaney, pre-Crawford law-specifically, State v. on Montana we relied 317, 297 263, 991 defining purposes for ofthe “testimonial” 1999MT Mont. P.2d 461-in (“As Carter, Delaney, such certification reports. See stated certification we offense, particular reports rather are foundational are not of a but substantive evidence words, the necessary In other evidence. admission substantive evidence certification foundational, they rather reports in that are are nontestimonial accusatory.”) nature (citation (“Thus, omitted); Carter, we adhere ¶ than substantive or Delaney pieces evidence at issue that the the rationale of hold nontestimonial confrontation.”). implicate constitutional here ... do Carter’s court statements are offered prove at trial to the truth of they what assert are “witnesses” within the meaning ofthe Sixth Amendment. See (“not Crawford, 51,124 541 U.S. at S.Ct. at 1364 all hearsay implicates concerns”). the Sixth Amendment’s Rather, core applies term ” “those testimony.’ who Ttear 124 S.Ct. at (quoting Webster, 1 N. An Dictionary American of the English (1828)). Language Thus, question becomes under what circumstances besides those listed in plainly Crawford testimonial-prior testimony preliminary at a hearing, grand before a jury, trial; or at a police former interrogations; a formal statement made by an government officer; accuser to a and plea showing allocution existence of a conspiracy-is an out-of-court declarant “hearting] testimony.” In words, other when is a declarant functioning as a against extrajudicially? Mosteller, accused “witnessH” Cf. (“In Encouraging and Ensuring, supra note essence, at 515 the issue is whether the Clause, core of the Confrontation covering relatively statements, small group of is instead the complete confrontation right.”). The question answer to this determines which donot fit within the aforementioned “commonnucleus” are nevertheless testimonial. outset, At necessary it is clarify, for the reasons which

follow, government that neither involvement nor a particular procedure in procuring a declarant’s statement required in order for the declarant to function First, as a witness the accused. all of the formulations set forth in contemplate statements made in the government absence of agents, officials or and two of the three clearly formulations extend to situations outside the ambit of formalized Specifically, materials. the first formulation refers to the equivalent” “functional parte ofex in-court testimony, giving affidavits16 pretrial and “similar statements that reasonably declarants would expect to be used prosecutorially” as examples. Crawford, 541 U.S. (internal omitted). 124 S.Ct. at 1364 quotation marks The second formulation, three, which is the narrowest ofthe also includes affidavits 16 oath, An is “a “affidavit” written declaration under made without notice to party.” 26-1-1001, notary public, necessarily adverse government official, affirmations, Section MCA. A who is not a -402, MCA, power §§ see 1-5-401 to has the to administer oaths or 1-6-101, MCA, depositions affidavits, see § and to take see 1-5- § 416(l)(b), MCA.

335 Crawford, 541 U.S. at a statement.17 See example an of testimonial statements formulation refers to 51-52, 124 at And the third S.Ct. 1364. objective which would lead “under circumstances that were made available for reasonably the statement would be to witness believe 52, at Crawford, at 124 S.Ct. 1364 a trial.” 541 U.S. use at later omitted). (internal marks quotation development right of the Second, of the historical in its discussion Confrontation evil” at which the “principal confrontation and the

of ex emphasized parte directed, repeatedly the Court Clause was and the absence of accused aspect the evidence admitted 43-50,124 at at Crawford, See 541 U.S. S.Ct. face to face confrontation. government a official Although frequently the case that 1359-63. was or formalized gathered pursuant prescribed had this evidence his of an to confront procedure, opportunity it was the accused’s lack Indeed, most one source of accuser which concerned the Framers. jury Raleigh’s trial out-of-court statements read at Sir Walter 44,124 at Crawford, Lord See S.Ct. was Cobham’s letter.18 Furthermore, say 1360. that the of confrontation is concerned given pursuant procedure with statements to formalized would testing in “in render statements most need of the crucible cross-examination,” 61,124 at Crawford, beyond 541 U.S. S.Ct. at reach.19 It interpretation Clause’s would be strained 17 formulation, White, proposed by Justice in 502 U.S. The second Thomas (Thomas, J., concurring judgment), concurring part 112 S.Ct. at 747 in in the also “confessions,” 52,124 noteworthy includes 541 is U.S. at S.Ct. which always are in a because confessions taken “formalized” maimer. actually 29,1603, Lords, July Cobham two letters “to the one on after his wrote other, damning, July on more examination before Council which much trial, explained away just was written before which occurred in November 1603. It Raleigh by two was able Cobham’s recantation his accusation as occasioned letters get begging prison, him to his Cobham while he was renounce former doubted, may nothing statements. proceedings was the voluntariness of the statements While the first letter was solicited the Council and second indicated that (footnotes Mosteller, Encouraging Ensuring, stated at 545 to be unsolicited.” omitted). (“When Mosteller, Ensuring, Encouraging at 571 & n.309 statements [by accurately entirety, manipulation government officials] then are of what eliminated— recorded in their Interestingly, particular possible. concern is not said is not this was but, made, it is the failure to record the statement when exacerbated— recording example, People formality gets For the court in which a focus on v. backward. Cage but the officer not written down recited that because the statement to said (Ct. Rptr. App. memory, Cal. 3d from the statement was non-testimonial. 15 2004)]. (Cal. fact, possibility 2004)[, granted, Cal.Rptr.3d Oct. In review manipulation greater governmental informal because even record, therefore,

historical to conclude that the Framers would be content reading long with the of out-of-court as they as had given informally been to a acquaintance formally civilian instead of government a official agent. or Third, there is evidence at the framing, legal time of the the

community understood person against that a who made an accusation him, was equivalent defendant of a against though witness statement not made government pursuant was to a official or ato prescribed procedure. Mosteller, See P. Remaking Robert Confrontation Hearsay Clause and Doctrine the Challenge Under Child Sexual (1993) Prosecutions, (hereinafter, Abuse 1993 U. L. Rev. “Mosteller, Remaking”). example, King [(1779),

For in Eng. Rep. 202], v. Brasier ordinary England criminal case decided in decade a before the Clause, drafting of charged Confrontation defendant was of a rape seven-year-old child and on the testimony convicted of the child’s mother another individual who related the by immediately accusations made to them the child after she following returned home the assault. The child was not sworn or produced as a witness at trial. The conviction was found invalid testimony because of that “no determination whatever can be oath,” legally received on except a determination that unmistakably rested on the conclusion that child was effectively a witness despite defendant her oral being through procedural statement offered other This witnesses. infirmity not forgiven though likely even the statement would analysis have been admitted modern as an under excited utterance. (footnotes omitted).

Mosteller, Remaking, at 749-50 Professor Mosteller points practice depend also out “historical did not on whether the Mosteller, made legal proceedings.” statement was with a view toward Remaking, at 750. Fourth, legal system, our pursuant procedural rules of testimony” extrajudicial

declarants are able to “bear in informal settings. generally is due to our legal system places This the fact that greater upon assessing testimony given no restrictions a in fact-finder by a in the form of versus declarant out-of-court statements live words, in In may give weight witness court. other a fact-finder same by contemporaneous may witnesses are not constrained written records check modifications.”) (n.308 omitted). additions and by the repeated it is whether “Joe assaulted me” to the statement court, on the declarant’s by police officer repeated declarant herself And behalf. by a on the declarant’s behalf, repeated private citizen or the declarant’s the statement is read from is true whether the same reason, For this signed the declarant. diary or from an affidavit governmental requiring “testimonial” as specious would be define obtaining the statement. prescribed formalities involvement Principles, Friedman, The Search Basic D. Richard Confrontation: (1998) (hereinafter, “Friedman, Basic 86 Geo. L.J. (“The person made question of whether a statement Principles”) way, put another be considered testimonial-or out-of-court should making considered a witness person whether should be rules. legal system’s procedural the exogenous not to statement-is Rather, large to a question depends crucially the on those rules because statement.”). system the that the makes of the depends extent it on use “In general terms: Lastly, right expressed the of confrontation is ¶76 right to be prosecutions, enjoy the shall the ... all criminal accused Const, against him.” amend. VI confronted with the witnesses U.S. added). target just ex language This reflects a broader than (emphasis parte by government pursuant or to examinations officials formalized ability procedures: testimony extrajudicially, the of a witness to bear cross-examination, Lord oath, subject not under and not to as did government or If officials Cobham.20 examinations of witnesses Framers, only of pursuant particular to formalities were the concern the this, using reflect they surely then would have drafted the Clause to (e.g., directly addressed such concerns language narrower more enjoy right “the accused shall be confronted with the witnesses formal against provided parte testimony pursuant him have ex who officials”). examinations by government 20 majority unclear, vacillating opinion, It is due to the nature of its whether the

narrowly by target the Confrontation Clause as examinations ofwitnesses construes of 19, 21, presence government Compare (emphasizing or ¶¶ officials. statements, government agents, referring to elicited of recorded absence statements, (“Thus, door, etc.) evidence, investigations, judicial-process-created ¶with official just person under courthouse if trial a shoved a written statement before crime, plainly asserting did in fact commit the that would accused though played preparing the government a role in even no official testimonial statement.”) (internal omitted) Friedman, (quoting quotation D. marks Richard Re-Rooted, 458). Transformed, Sup. Ct. Rev. Cato Clause Confrontation advocating government agent procedure But, formalized a and/or to the extent it narrowly. standard, majority reading to the “use The Court referred too against particularly heinous parte as the accused” as of ex aspect examinations evidence only procedure, of which itself was characterized of the civil-law mode criminal “principal” Clause directed. See as 541 U.S. at evil at which the Confrontation 50,124 at S.Ct. Thus, against” the definition of “witnesses the accused does not turn on whether the declarant her to government made statement (whether official agent pursuant or of her own or initiative to an manner, interrogation) prescribed though in some these factors are undoubtedly who, A inquiry. relevant declarant with anticipation that her presented oral statement will be to the at fact-finder a criminal trial, relay surely entrusts a civilian acquaintance that statement is testimony,” “bear[ing] notwithstanding governmental the absence obtaining involvement in prescribed procedures the statement or recording it. Furthermore, the meaning against” of“witnesses is not derived particular

reference to the vices mode of civil-law criminal (ex procedure that ofthe framing existed the time parte examinations vice). being primary generally Mosteller, Remaking, at 751-55.21 To hold otherwise would freeze application particular ofthe Clause to a right historical affront to the common law of confrontation: the use parte striking ex procedures examinations-and modern “bear a which thereto, interrogations, Crawford, such police resemblance” 541 U.S. 124 S.Ct. at 1364—as evidence the accused. In other words, say applies Confrontation Clause particular ofcollecting prosecutorial modes which evidence were known (the ratified) year the Sixth Amendment was and which the modern, would rejected functionally equivalent Framers leave means evading intact, thereby the common law confrontation methods, government leave the free to such employ possibility surely recognized Framers but did intend with the words “witnesses against.” It is for reason that against” interpreted this “witnesses must be by to the opposed reference substance-as to the or form

manifestations-of the evil at the which Confrontation Clause was criminal failings directed and which the of the mode of civil-law procedure many the represented. shortcomings inquisitorial of system instance, observes, majority denying are obvious. For as the the right “possibleprosecutorial ofconfrontation creates of misconduct risks overzealousness,” 15, justice and system [of] and “abuse the criminal ¶ though opposition inquisitorial system “[E]ven worst to the elements of the Clause, acceptance motivated the of the no evidence Confrontation affirmative exists only specific inquisitorial the its reach Framers intended clause to limit to the procedures. guide-the of the The best actual words Sixth Amendment’s Confrontation Nevertheless, strong carry message. Clause-do such a reason not there is to believe right prevent procedures that particular.” the intended the such in Framers confrontation Mosteller, Remaking, at 754. revenge on, shift the in or to [by punish, declarant] a order to exact Mosteller, and Encouraging defendant,” 16. See also blame to the ¶ of police questioning (suggesting, respect at 569-71 Ensuring, by declarant, served the Confrontation purposes” “[t]hree broad manipulation of the witness preventing “government[al] Clause: uttered,” evidence-manipulating preventing the words creating the recording the of the rather “governmental of statement manipulation said,” the defendant manipulation “protecting] than of what was of by independent from malicious falsehoods or even errors the witness governmental manipulation.”). addition, In the unable to accused is statement, the explore making motives in the the declarant’s the the asserts as knowledge declarant’s direct facts which statement true, events ability the declarant’s to have observed and understood the memory her ofher represents, perception statement the declarant’s situation, Crawford, 65- credibility. and the declarant’s Cf. (discussing purposes 124 S.Ct. at 1372-73 the cross-examination trial).22 would have served at Crawford’s Furthermore, third party repeats who a declarant’s witness inevitably through his or

hearsay statement at trial does so the filter of Nevertheless, perceptions, prejudices, her own motivations. because oath, by the under the witness is the declarant’s statement presumed words, fact-finder to be true. In other statement itself takes on mantle of a statement witness party sworn because third to the truth his or her swears recollection rendition however, a witness outright perjury, statement. Absent confabulation or truth-i.e., or or her testifies what he she believes is his perceived, subjective understanding he she See of what saw or heard. 71, 328 71, 121 Clifford, State v. 2005 MT Mont. P.3d ¶ ¶ (Nelson, J., Granted, concurring). may there be cases in which effectively on issues party defendant will cross-examine a third witness however, bias, observation, ability recall, etc.; powers to retain and doing cross-examining so is not sufficient substitute for the declarant. was, all, after confront read “Raleigh perfectly free to those who Cobham’s confession in court.” 541 U.S. 124 S.Ct. at (“Proof Mosteller, Remaking, through also at 753-54 of the state’s case ex First, parte adversary system regards. accusations is antithetical three always suspect-often is created is secret and one-sided. manner which accusation Second, presentation through state’s case such documents rather than oral ofthe presentation record accusation. The historical trial of the witness is inconsistent with face-to-face Third, permit dossier. that the drafters were inclined to indicates procedure conscience about the test their the witnesses-to denies accused cross-examine accusation.”) (footnote omitted).

340 Yet, “Raleigh’s trial long thought has paradigmatic been

confrontation Crawford, 52, violation.” 541 U.S. at 124 S.Ct. at 1364. Again, it is right the ofthe reliability accused to test the truth and ofan out-of-court statement “inthe crucible ofcross-examination” ofthe declarant, Crawford, 61, U.S. at 124 S.Ct. at that Framers enshrined in the Sixth importance Amendment. The testing-which adversarial legal system-cannot underlies our entire In (1970), understated. v. Green 399 U.S. 90 S.Ct. California 26 L.Ed.2d the Court observed that (1) [c]onfrontation: insures that give the witness will his statements under oath-thus impressing him with the seriousness of the matter and guarding against by the lie possibility of a (2) penalty for perjury; forces the witness to submit cross-examination, “greatest legal engine ever invented for the (3) discovery truth”; permits [and] jury that is to decide the defendant’s fate to observe the demeanor making ofthe witness in statement, his aiding jury thus assessing credibility. his (footnote omitted). Green, 399 U.S. at 90 S.Ct. at 1935 It not therefore, surprising, right and, the common law of confrontation thus, the Confrontation Clause judgment, only

reflects a desirability about the of reliable (a point evidence dissent), on which there could be little but about reliability how Blackstone, can best be determined. Cf. 3 (“This Commentaries, at open examination of witnesses ... is much more clearing truth”); Hale, conducive to the up M. (1713) History Analysis England the Common Law of (adversarial better”). testing “beats and bolts out the Truth much 61-62, (ellipsis original) S.Ct. at 1370 added). (emphasis Hence, guaranteeing right to confront one’s accusers is the response system

Framers’ to a permitted the use at trial of subjected statements not to adversarial testing. Again, some of the shortcomings inherent in system inability such a are the theof accused probe inconsistencies or untruths in the declarant’s statement and to declarant; elicit additional potential information from the for (inadvertent be) misrepresentations though they may part on the ofthe party witness; third “prosecutorial the risk of misconduct overzealousness,” 15; potential and the ¶ [of] “abuse criminal justice system [by declarant],” however, say, 16. This is not to the confrontation specificshortcomings arises when these are implicated (e.g., only possibility when there is a for prosecutorial maliciousness). above, misconduct and/or declarant As noted if the particular reference to reach were limited strict Clause’s rejected procedure criminal of mode of symptoms manifestations free to Framers, inquisitorial practices would be analogous then flourish. Rather, right whenever the civil-law the confrontation arises U.S. at 124 S.Ct. at

system implicated. Crawford, itself is See (“At convention, Holmes ratifying the Massachusetts Abraham objected a proposed [the in the Federal Constitution of omission precisely ground confrontation] of on the that it would lead to civil-law ....”). practices testimony This when a declarant creates without occurs subject and to cross- doing so before the fact-finder under oath 43-50,124 the S.Ct. Crawford, examination accused. See 541 U.S. at Mosteller, at 514 Encouraging Ensuring, at 1359-63. Cf right” (characterizing procedural goal “the ofthe confrontation positive ensuring presented is in the “encouraging as that evidence subject presence courtroom in the of the accused and to adversarial testing”). generally, Stated more of the at which substance evil inaccuracy inequity Confrontation directed is the Clause was system procedure precludes inherent in a of criminal which an accused reliability through challenging from of the State’s evidence meaningful permits person confrontation and the State to on convict Mosteller, Remaking, testimony given extrajudicially. of basis Cf at (characterizing “proof charges 748 n.277 “the evil” as of historical accusers”). from absent Thus, system the Confrontation Clause ensures an adversarial pursuant testimony given purpose, to which is at trial. Given this extrajudicially functions as testimony” “bear[s] out-of-court declarant or “witnessQ” understands, against the accused she or should when or, understand, understanding, of doing independent that she is so her government gathering possible prosecutorial is when evidence against evidence-gathering functioning feature as a use. witness is in the set forth the accused reflected first two formulations examinations,” testimony,” Crawford, “prior which refer to “custodial 51-52, Crawford, 541 “depositions,” see U.S. at 124 S.Ct. pretrial extended examinations well as Court’s discussion officials, see by justices peace and witnesses of the other suspects 1359-62, 43-48, U.S. the witness- Crawford, 541 S.Ct. at while third understanding reflected in first and feature is Crawford’s formulations, reasonably expect which ask what a declarant would formulation) (first prosecutorial use of her statements concerning the which under circumstances the statements were made and whether reasonably to believe objective lead an witness would (third statements would be available for use at a later trial formulation). 51, 52,124 S.Ct. at 1364. All three formulations indicate that proper focus is on the statement’s evidentiary function or purpose, as opposed to its Friedman, characteristics. See generally Grappling, supra note at 3- words, 6.23In other statement, did the made, at the time it was serve the function of testimony? in-court proposes Professor Friedman general definition of this “[The function: function prosecution testimony], terms, in rough is the transmittal of information for use in prosecution.” Friedman, Grappling, light at 2. In foregoing discussion, whether an being out-of-court statement transmitted for use in prosecution depends statement, on the nature of the made, circumstances under which it was If, and to whom it was made.24 given considerations, these the declarant should anticipated have her statement would be used in a proceeding, criminal she was functioning as a accused, witness and her statement (As testimonial. implicated by itself, objective standard this is an inquiry, which will be in greater discussed detail infra.) below. See ¶ Furthermore, if the declarant speaking government to a agent who generating testimony, her statement is regardless testimonial recognized whether she purpose. Mosteller, that Encouraging 614,624. Ensuring, at points Professor Mosteller out that “the Framers government feared the role of the manipulating the statements received and would not government have excused them if the deluded the witnesses or advantage took of their inadequate knowledge or Mosteller, limited capacity.” mental Encouraging Ensuring, at 624- 25. points “[i]t Professor Friedman out that ... makes no sense to determine by asking whether a key statement is testimonial whether the statement shares testimony. very point characteristics with trial The of the Clause is to ensure that proceeding testimony given trial, will be at at some other that maintains testimony. say beyond essential attributes of trial To that a statement the reach of given the Confrontation Clause because the circumstances in which it was do not logic

resemble a trial therefore turns on its head. It means that the more that a satisfy testimony prescribed by statement fails to Clause, the conditions for the Confrontation likely Friedman, problem.” Grappling, the less the Clause will address the above, explained government As whether the statement at a issue was made to through procedure in official or in a formalized manner or was obtained a a bears “striking by justices peace England,” Crawford, resemblance” to examinations 52,124 Rather, S.Ct. at is not tahsmanic. such characteristics relate and, such, to the circumstances or formalities under which statement was made as merely anticipated are statement would be used in a criminal informative of whether the declarant should have proceeding. any definition than a of “testimonial” narrower To state ample the government opportunities afford foregoing formulation would through a and the of confrontation mandate avoid Crawford’s variety of countermeasures. statements[-e.g., they were

[M]anyofthe oftestimonial indicators they are contained pursuant police interrogation, made If formal, documents, etc.-]can such signed, disappear. written in form render the statements changes “cookbook” can non-testimonial, prove ofthe will avoidance restriction Crawford relatively easy many police that are not made to for officers, no protection and if there is Confrontation Clause statements, justice for those issues of as whatsoever serious accusatory problematic go statements will unaddressed. Mosteller, Encouraging and narrower Ensuring, Stating at 539-40. also would to act as a while permit definition declarant witness by making her escaping simple expedient confrontation in a less formal implicated statement manner than the formalities anyone the first and second formulations set forth or to government agent. Friedman, than a posits other Professor following example: private

A tells a counselor at a has been woman shelter that she says: The raped. counselor videotape

Please make a statement us. We will it and send I tape prosecutor. anticipate prosecutor’s officewill use it at trial as the cornerstone its case your prosecutor you assailant. The won’t have to call witness, just necessary any because that’s not more .... dares, might you-but only you’re if accused call if he concerned, Which, you then so far as the law available. Oh, way, you’re speaking be. since needn’t [¶] oath, you for worry prosecutor going under don’t about the after perjury.

Friedman, Principles, Basic if it is then example If the woman in this makes the statement and trial, undoubtedly against” a

presented acting at she was as “witnessD testimony She in a manner to which providing her assailant. was (and legal receptive; anticipated that her statement could system is she would) as a testimonially; essentially acted be used the counselor Friedman, Principles, agent Basic conduit or an for the declarant. See authorities, made to fact the statement not 1041. The was or even at their instigation, does not alter this conclusion.25 But even if the declarant seeking not to escape cross- examination, the result can be no different. It is no less a Confrontation Clause violation to disallow confrontation simply because the (to ascertainable) declarant’s motives the extent those motives are are benign. protecting While the accused from “malicious falsehoods” perpetrated by the goal Clause, declarant is one by effectuated equally Framers were concerned with “unchecked witness error.” See Mosteller, Encouraging Ensuring, at 571. reason, For this foregoing inquiry-whether the declarant

should anticipated have that her statement would be used in a criminal proceeding-is standard,26 an objective may which in expressed ways. instance, number of For given statement, the nature of the made, circumstances under which it made, and to whom it was objective would an declarant have believed the statement would be available for use at a later trial? inquiry This resembles Crawford’s third formulation.27 See Crawford, 541 U.S. at 124 S.Ct. at 1364.

25Nor does the fact that the woman’s statement was not made under oath. The Supreme Cobham’s specifically Court dispositive. [is] stated that “the absence of oath unsworn, yet Raleigh’s long thought examination was trial has been paradigmatic (citation omitted). Crawford, confrontation violation.” 541 U.S. at S.Ct. (“We Crawford, n.3,124 See also 541 U.S. at 52 S.Ct. at 1365n.3 find implausible provision concededly by that a parte which condemned trial sworn ex thought parte perfectly OK.”);Friedman, affidavit trial unsworn ex affidavit Basic (“The Principles, protections defendant, at 1042. oath is one of the accorded the providing themselves at risk for false statement. testimonial excuse for problem~the testimony putting some assurance that witnesses will not offer without Assinning the statement was made with intent, part problem; of an absence oath is it should an not be admitting accusatory yet an statement that suffers from another critical examination.”). opportunity lack of for adversarial suggested by This standard is itself. The first formulation of implicates objectiveinquiry (“pretrial “testimonial” an statements that declarants would reasonably expect prosecutorially”), to be used while the third states the standard (“statements explicitly that were made under circumstances which would lead an objective a reasonably witness to believe that the statement would be available for use at trial”). added). 51, 52,124 Crawford, (emphases later See 541 U.S. at S.Ct. at 1364 Supreme day any spell “[left] The Court for another effort to out a “ comprehensive 68,124 Crawford, definition of‘testimonial.’ 541 U.S. at S.Ct. at 1374. majority language warning” against formulation set forth in adopting infers from this a “tacit court’s second) (and, presumably, third the first and Crawford. (or Yet, “warning” implicit language anywhere ¶ 29. there is no such in this else opinion, matter); merely for that it is the Court that observation Crawford spelling Clause issue in comprehensive unnecessary out a definition was to resolve the Confrontation Crawford, Sylvia since Crawford’s statement was “testimonial under any definition,” 61,124 Moreover, S.Ct. at 1370. to conclude that purpose setting give the Court’s guidance forth the three formulations was not to lower courts defining beyond specific examples opinion, “testimonial” set in its forth

345 at the time she declarant have understood Alternatively, should the significant probability a made that there was her statement Or, declarant is because the prosecutorially? would be used statement actions, of her see consequences the natural deemed to have intended 6-7, in Friedman, evidentiary use the statement Grappling, at actions? ofthe declarant’s proceeding consequence a criminal a natural (“[W]e (10th 1287, 2005), 414 F.3d 1302 See v. Summers Cir. also U.S. of the objective focusing expectations on the reasonable believe test adequately under the of the case more declarant circumstances safeguards right closely and more reflects the accused’s confrontation underpinning the concerns the Sixth Amendment. Thus we hold a of the person position statement is testimonial if reasonable objectively might foresee statement be used in declarant would that his crime.”) (citation omitted). prosecution or of a investigation Of relevance to this is whether the statement particular inquiry Const, (“In U.S. criminal was accusatorial nature. See amend. VI all enjoy prosecutions, right... accused shall be confronted with him.”) added); against (emphasis Crawford, the witnesses 541 U.S. at (“The 43,124 concept at 1359 to confront one’s is a S.Ct. accusers times.”) added); (emphasis dates back to Roman 541 (Pre-trial 43, U.S. suspects at 124 S.Ct. at 1359 examinations of by justices peace witnesses other officials “were sometimes testimony, practice read in court in lieu live that ‘occasioned “accusers,” frequent prisoner demands have his i.e. the “) him, against brought (emphases before him face to face.’ witnesses 44, added); Crawford, (“Suspecting 541 U.S. at 124 S.Ct. at 1360 recant, him Raleigh judges Cobham would demanded that call ”) (second appear my my ellipsis ‘Call face ....’ .... accuser before astray attempts but rather to lead us in. our to ascertain whether statement “testimonial,” reading preposterous is a of Crawford. adopted Notably, majority approval numerous itself cites with courts which (1st applied Allen Cir. and/or 2004) (cited one or more of the three formulations. 75, 84 Horton v. (cited (8th 2005), 703, , 17); U.S. v. Cir. 416 F.3d 706-07 782-83 ¶ 370 F.3d at Brun 774, 20); (Cal.App. 2004), People Cal.Rptr.3d 12 v. 2 Dist. ¶at Cervantes (cited (cited (Conn. 191, 21); 21); 2004), ¶ at State v. 844 A.2d 201-02 ¶ at Rivera (Colo. (cited 2005), 876, 28); Bray (Ky. Compan People ¶ P.3d at v. Com. v. 121 880-81 (cited 2005) 30); ,_S.W.3d_, 2317014, Ky. State ¶ LEXIS 288 at v. 2005 WL 2005 (cited Krasky 2005), 816, 30); People (Minn.App. v. ¶at Rincon 696 N.W.2d 819-20 (cited 2005), 844, 30); (Cal.App. (S.C.App. Cal.Rptr.3d at v. Staten ¶ Dist. 858 State 2 28 (cited 2004), 823, 836 30); (N.C.App. 2005), at State v. Blackstock ¶ 610 S.E.2d (cited 2005), 30); (Wash.App. 1 118 P.3d State v. Div. ¶ 598 S.E.2d 935, at Walker (cited 2005), 30); (Wash.App. 1 662, 675 P.3d Moses Div. State v. ¶¶ (6th (cited 2004), (adopting 10, 22 30); F.3d Cir. ¶¶ ¶at U.S. v. Cromer (cited 16); resembling Crawford) ¶at applying Com. v. Gonsalves set forth in a test the third formulation 30). (same) (cited (Mass. 557-58, 561-62 2005), ¶at 833 N.E.2d original) (emphasis added); Crawford, 47, 124 S.Ct. at 1362 (“Early in the 18th century, ... the Virginia protested Council against the Governor for commissions having ‘privately issued several against examine witnesses particular men parte,’ ex complaining that ‘the person accused is not with, admitted to be confronted or defend ”) himself his (emphases added); Crawford, 541 U.S. defamers.’ (“An 51,124 S.Ct. at 1364 accuser who makes a formal statement government testimony....”) officers bears (emphasis added); California (1970), 149, 179, v. Green 1930, 1946, 399 U.S. 90 S.Ct. 26 L.Ed.2d 489 (“[T]he (Harlan, J., concurring) Confrontation Clause was meant to constitutionalize a against flagrant abuses, barrier by anonymous trials witnesses.”) accusers, and absentee (emphasis added); Mosteller, (“[I]f Encouraging Ensuring, at 514 n.18 testimonial is defined using the [third and, formulation] in appropriately Crawford interpreted, it will include most accusatory hearsay.”); Mosteller, Remaking, at (setting 747-49 forth the historical interpreting basis for the Confrontation Clause as applying to accusatorial statements in particular).28 Indeed, Carter, our conclusion in 87, 326 State v. MT 2005 427, 114 Mont. P.3d that the Intoxilizer 5000 reports certification nontestimonial, were is most plausibly reconciled foregoing with the discussion of what constitutes a “testimonial” ground statement on the that the represented by statements reports (e.g., the certification “This machine has been tested and/or produces calibrated and accurate results.”) accusatory are not [Text in nature.29 page 348] continues on proposed Professor “[t]he Mosteller notes that amendments to the Constitution Congress guaranteed James Madison in right introduced the First would have the accusers, ‘to be confronted with his and the witnesses him.’ The reference to perhaps dropped because, accusers was from the final version with the addition of the against him, By contrast..., Georgia term it was seen as redundant. the Constitution granted differently phrased clearly right: of 1877 confronted a limited more ‘shall be testifying against certainly with the witnesses him.’ There [¶] is no proof charges by indication that the historical evil of of statements from absent accusers had been interpretation abandoned the Framers. The most reasonable is phrase protection against danger accomplished through was believed to be (citations Mosteller, omitted). against.” Remaking, witnesses at 748 n.277 reason, majority’s Carter, For this treatment ¶ of see is somewhat baffling, apparent hostility accusatory as is its to the idea that nature of a (see 15), inquiry, statement is relevant to the “testimonial” see ¶ 30. As noted above note explained reports we in Carter that the Intoxilizer 5000 certification “are not particular offense, substantive evidence of a rather are but foundational evidence necessary words, for the admission of substantive evidence. In other the certification reports they foundational, are nontestimonial in nature in that are rather than Carter, accusatory.” surprisingly, therefore, proffers substantive or ¶ 32. Not Mizenko (1) (2) they that all out-of-court statements are “testimonial” if are substantive and majority rejects “overly accusatorial. See 12. The ¶ this formulation as broad” because requires.” require to than Sixth Amendment “it would courts exclude more evidence immediately “overly makes Mizenko’s formulation 12. are not told what ¶ We prong, prong, perhaps broad”-perhaps perhaps majority enlightens the accusatorial it is the substantive it is application-however, prongs, perhaps the the reiterates that the it is their simultaneous it is both opinion it “the author us later in the where states that ” “ against’ report” not a Carter and then certification certification ‘witnessD reports in ‘not substantive at issue Carter were nontestimonial “because ” particular offense.’ 22. ¶ evidence of a reports Hence, proffered why explanations the certification have been three (1) substantive, they foundational, are not nontestimonial in Carter. were found to be (3) (2) nature, offense, they particular are not evidence accusatorial reports person making is not witness the statements reflected the certification “against” theory, As to Black’s “substantive evidence” the defendant. the first defines “[ejvidence issue, help opposed as to a fact in as to evidence directed offered establish (8th Dictionary impeach credibility.” support a Black’s 599-600 or to witness’s Law 2004). (that majority’s theory ed. an out-of-court is nontestimonial While statement issue) purpose application,” “appealing when other a fact is in its offered for than to establish clarity analysis and ease of a more exhaustive and the in Carter reveals that the ¶ Crawford necessary than we confrontation found conduct inquiry depend “testimonial” does not on whether the at issue is statement offered in issue. indication in that a establish a fact exempted There is no statement scrutiny foundationally from Confrontation Clause if is used to establish admissibility Rather, question the inquiry necessary truth of of other a “testimonial” evidence. of whether prove turns on whether the out-of-court statement is offered n.9, See the matter asserted. 541 U.S. 124 S.Ct. at n.9 (“The purposes Clause... does not bar the of testimonial other use statements for than asserted.”). establishing the truth of the matter Furthermore, majority post authority theory cites no for its other -Crawford (see which, 15), explained pre-Crawford than Carter above note relied on Montana Carter, defining purposes law “testimonial” for ofthe ¶¶ issue. Granted, majority reports analogizes 34. the Intoxilizer 5000 certification However, records, immigration records, business and medical records. See they reason such are in a records nontestimonial run-of-the-mill case is because are offense,” they many particular “not Rather, of a substantive evidence which in cases are. places it is the “nature” statements in the nontestimonial because ofsuch them category. Crawford, 56, ably See at 124 S.Ct. at Mosteller U.S. 1367. Professor explains as this distinction follows: [Tjhere that, simply no theoretical is basis to assume because a statement falls modern-day hearsay exception, within a it was intended to be excluded from protection testimonial characteristics. particular under the Clause if statement Confrontation that has Rather, hearsay [of the Court’s treatment several say that, exceptions probably non-testimonial] in meant to specific requirements particular hearsay exceptions, because of the the most of them the statements within would not meet testimonial definition.... An examination of business records and statements in furtherance of a conspiracy helpful non-testimonial suggesting important in an are indicator ofwhen statements statements, though falling particular and which even within a hearsay exception, be treated as That indicator is modern should testimonial. purpose accusing, the the or whether it is made whether for another statement made for ordinary purpose associated with other human activities. may at the records concern matters that are understood time Some business litigation may clearly accusatory. they However, made to be for were destined core, recording they employees, their are matters that at involve who routine, ordinary, performing job and functions. are related their (footnotes added) Mosteller, Encouraging Ensuring, (emphasis 547-48 and omitted). (see 22) by support interpretation. majority cited the Mosteller’s See ¶ The cases (The (9th 2005), 825, 830, 832, 833 “certificate of U.S. v. 421 F.3d Cervantes-Flores Cir. record,” prove nonexistence of the nature because it nonexistence which was offered “to that Cervantes had not received Attorney States,” General’s consent to reenter the United is “nontestimonial in closely resembles a business record.” The certificate “certifies the aof record within a prior class of records that themselves existed records.”) litigation, 2005), prepared physicians prosecution compensation, (6th much (emphasis added); like business U.S. v. Garner Cir. (“[T]he Fed.Appx. 269, 270, 274 (unpublished) [medical]records at issue were request by at Garner’s and were submitted her in order to obtain benefits. The preparing involved reports were not their in the context of a criminal fraud, making [for mail false employees’ statements to obtain federal making Security false disability statements to obtain Social benefits], ‘anticipate and had being [their] no reason to used “) (some investigating [Gamer] prosecuting in original). the crime.’ alterations in above, majority explanation As noted why the an offers additional for the reports” Intoxilizer 5000 certification were nontestimonial: “the author of the “ ” reports” against’ certification “hearsay ‘witness!] was not a provided Carter because purposes ‘against’ for foundational is not highly evidence the ¶ defendant.” 22. It is doubtful that Carter report considered the author ofthe certification to be a witness for him; thus, majority prosecutorial the has created a new class of“neutral” witnesses who subject are not statements are “so [their] scrutiny-perhaps Confrontation Clause because their out-of-court trustworthy testing expected that adversarial can be to add little to reliability,” White, 357,112 Yet, majority’s theory S.Ct. at 743. presupposes foundational way effectively that there is no cross-examine evidence offered for purposes, appeal. Moreover, assertion belied the fact of Carter’s all prosecution evidence offered competence trial-even evidence to establish the credibility purpose conviction; and evidence is of its obtaining not, witnesses-is for the if likely majority provides authority reasoning irrelevant. The neither nor for proposition prosecution 5000's) (e.g., that evidence of a witness’s the Intoxilizer competence “against” is not evidence the accused as that term is used in the Sixth Amendment, and Rather, Carter was not written with this characterization in mind. opinion 991 P.2d are judgment, Delaney, 317, 297 reflects our based on State v. 1999 MT Mont. reports they “the certification are nontestimonial in nature in that foundational, accusatory.” Carter, rather than explained substantive or ¶ 32. As above, the support history foundational/substantive distinction does not find in the Crawford, suggests remaining theory-that formulations set forth in statements are not Carter. which that the accusatory nature-provides proper holding in basis for our accepted majority’s theory But “hearsay provided even if we for purposes ‘against’ defendant,” 22, foundational is not evidence the reason such “against” they statements would not be evidence an accused is that are not of an accusatory Specifically, represented by nature. reports, the statements the certification prove (i.e., which were offered to the truth of the matter asserted that the Intoxilizer properly), anyone else, 5000 functioned something did not accuse Carter-or for that matter-of Rather, they operation. Delaney, unlawful. related to the machine’s (distinguishing ¶ 18 an annual certification form the for Intoxilizer which was purposes Delaney, used for report analysis foundational from a of the chemical drugs, substantively Clark, 221, 290 479, 964 which was used in State v. 1998MT Mont. ground “[t]he P.2d on the information in the annual certification form was not Clark”) added). accusatory analysis (emphasis in the same manner as the chemical Accordingly, plausible explanation why, the most under reports certification at issue in Carter were nontestimonial is that the statements represented by reports-which, observes, majority those as the were made in anticipation Carter, statements, prosecutorial trial, accusatory use at ¶see 22-were not ofan nature. See (“As Mosteller, Encouraging Ensuring, ¶ 32. See also at 575 to all purposes testimony, generally those made for other than or more prosecutorial use, non-accusatory, properly court or those that are can be excluded from added). concept.”) (emphasis Therefore, majority’s attempt a testimonial distinguish against” misguided, inexplicable “witnesses from “accusers” is and its contempt inquiry for the accusatorial factor of the “testimonial” is unsound.

349 person case a often be the principles, these it will Given contemplated by the “witnessD,” as accusing of a crime is a someone Clause, Brasier, supra and King see v. Confrontation of crime and claiming to be the victim a by person made a “testimonial,” Friedman, Principles, crime see Basic describing that are Mosteller, Ensuring, n.548 Encouraging at 608 See 1042-43. also (“If practices that did imagine are to the Framers’ reaction to we time, have been imagine practices the could few that would exist at we of a concept prosecution their values than the more abhorrent compelled, of a victim who was not through the out-of-court accusations charges available, person the those in even if to take stand make defendant.”). the particularly This is true when declarant the of or no speaking person expectation to a whom there little confidentiality, in such circumstance since would not be reasonable accusing a and/or anticipate that statements someone of crime not be for use at trial as describing crime will further transmitted against accused. evidence the hand, On the if were made under other such statements

circumstances in had a of expectation which declarant reasonable during a health confidentiality-e.g., private conversation with mental professional doctor-patient privilege-then within the confines ofthe reasonably expect declarant could statements would not be such, they at a trial. As introduced later would be nontestimonial. statement, dirty true of “If it hadn’t for that son-of-a- same is been (1970), Evans, now,” v. bitch Alex we wouldn’t be in this Dutton Evans 74, 77, 210, 214, (plurality opinion), 400 U.S. 91 S.Ct. L.Ed.2d (Williams) phase concealment coconspirator during made Evans’ 57, 124 conspiracy. S.Ct. at their (characterizing foregoing hearsay statement at issue in Dutton testimonial”).30 may Williams’ Though statement have been “not (the infer that had jury accusatorial nature was “invited to Williams police charged three officers Evans were murders of Williams Shaw, trial, prosecution Georgia. that he had witness at Evans’ testified and Williams arraigned. prisoners “when at the time was Shaw said that been fellow Williams was returned to Williams arraignment, penitentiary from the he had asked responded, you had ‘If it Williams: ‘How did make out in court?’ and that Williams dirty Evans, this now.’ hadn’t for that Alex we wouldn’t be in been son-of-a-bitch objected testimony upon ground that it of this Defense counsel was introduction objection hearsay of confrontation.” The thus violative Evans’ Georgia “upon the of a and Williams’ statements were admitted basis overruled proved, provides: conspiracy ‘After the fact shall be declarations statute that any admissible project conspirators during pendency shall be the criminal one of the ” Dutton, 77-78, 91 S.Ct. at 213-14. all.’ See 400 U.S.

implicitly identified Evans as the perpetrator of the murder when he predicament,” Dutton, blamed Evans for his 88, 400 U.S. at 91 S.Ct. at 219), it express “contained no fact,” Dutton, assertion past about 88, 219, U.S. at 91 S.Ct. at it was prisoner[],” Dutton, made to a “fellow 77, 400 U.S. at 91 S.Ct. at and making “against it was [Williams’] penal interest,” Dutton, 400 U.S. at such, S.Ct. at 220. As it cannot be said that Williams should anticipated have that statement would be used in a criminal proceeding against Evans. (even Similarly, accusatorial) statements those that are made to family members, friends, intimates, and other in whom there is typically an expectation ofprivacy confidentiality, or frequently will be nontestimonial. As points out, Professor Mosteller majority

the vast of statements made to private individuals are made purpose for a other creating than evidence .... Such typically convey statements are made to information to accomplish other purposes, or for no real purpose other than to share the burden Moreover, of an emotional event. most statements made to private individuals tend any to be made anticipation by without speaker the statement conveyed beyond will be audience, immediate let alone that it will be at used trial. Mosteller, Encouraging Ensuring, at hand, 573. On the other if it appears from the circumstances that the declarant should have understood that her member, to a family friend, acquaintance, etc. conveyed beyond would be person, then the statements are testimonial. foregoing As the illustrate, discussion and examples the nature of statement,

the out-of-court the circumstances or formalities under made, which it was and to whom it was all made inform the reasonable anticipation expectation or ofthe declarant as to whether her statement will be used for evidentiary purposes. anticipation The reasonable or declarant, expectation turn, ofthe determines whether the declarant functioning as a against” and, ultimately, the accused “witnessD whether her statement was “testimonial.” Professor “suggests] Mosteller dividing one line. When a accusatory statement is conveyedbeyond and intended to be those who expected would be to keep government agents, it confidential-to private agencies perform government functions, strangers at arms length from the Mosteller, witness-it should be considered testimonial.” Encouraging Ensuring, conception 544.1 find this to be a useful guideline; however, I believe proper focus should be on what the objective believe, circumstances lead an reasonably would witness see 124 S.Ct. at not on the declarant’s difficult, impossible, if not intent, frequently which subjective (6th 2004), Cromer Cir. U.S. v. declarant’s absence. in the ascertain Cf (“The then, the declarant is whether inquiry, proper 389 F.3d turn, intent, That testimony against the accused. intends to bear in the person whether a reasonable by querying may be determined being used statement anticipate would his position declarant’s crime.”) (emphasis prosecuting investigating the accused added). Mosteller’s to Professor reason, I also do not subscribe this For (which see apparently approves, majority suggestion corresponding n.3) party, strictly private to a was made & that when a statement 23¶ it was to show that on the defendant properly placed can “the burden Ensuring, Mosteller, Encouraging and purpose.” a testimonial Ensuring, at 572. Absent Mosteller, Encouraging and 544. See also the declarant’s confrontation, prove cannot whether a defendant the statement to be she intended testimonial whether purpose was confidential. expected keep beyond those who would be conveyed always proponent of the Rather, who will prosecutor, arises, party is the most Clause issue a Confrontation statement where (either directly through or the declarant likely to have had access to officer). investigating such as the agent government, another of the admissibility of its Moreover, to establish the requiring the State Clause fact that the Confrontation comports with the proffered evidence State, Thus, proof not the accused. burden is a restriction on the hearsay evidence establish that placed on the State to properly is it seeks to introduce is nontestimonial. “testimonial,” the majority’s formulation of Turning now to the concerning the of assertions

majority desultorily sets forth a number together Clause, “[b]ring[s] the Confrontation after which purpose of rationales,” following definition: into the these ¶ officer or knowingly speaks police a declarant generally, when If, testimonial. presumed her statements are governmental agent, that her objective reason to believe however, the declarant had mitigate an imminent only to avert or would serve statement had received the statement danger agent and the who immediate to be evidence, presumed is create the statement no intent clear the declarant had Alternatively, unless nontestimonial. used in court would be the statement reason believe to a defendant, her statements against evidence substantive nontestimonial. agent are non-governmental formulation, as well as several this majority applies then 23. The ¶ formulation, of this to the facts in its not set forth additional factors unfaithful approach is demonstrating its case, thereby Clause, contrary historical foundation the Confrontation is confrontation, right common law properly safeguard fails to accused’s to confront the witnesses him. outset, acknowledged majority’s At the it must be that the analysis significant

contains inconsistencies which make it unclear precisely what standard a court is to apply majority what considerations the instance, deems determinative in the “testimonial”inquiry. For whether a statement is testimonial to turn appears on the declarant’s belief, knowledge, motivation, state, purpose, emotional understanding of the charged (subjective elements offense factors), 18,20,23,27; nevertheless, majority see insists that the ¶¶ (an factor) expectation objective declarant’s reasonable is determinative, n.3, see 29 n.7. We are told that a declarant who ¶¶ knowingly speaking government agent expect to a should her trial, 18, 23; yet statements to be used at see we are also told that a ¶¶ expectation speaking operator depends declarant’s when to a 911 on the content particular of the conversation and the circumstances that led to the call’s being placed, majority disapproves see 20. The Professor ¶ “proposed Mosteller’s ‘declarant’s intent’ standard because of the practical difficulty of divining the intentions of an declarant absent believe,” n.3, except by they [sic] reference to what reason to have 23¶ support argument but in of its that Debra’s statements to Grove were nontestimonial, majority cites Professor Mosteller’s “proposed testimonial,” ascertaining method for whether a statement is majority disapproved same method the because it turns on the intent speaker. majority setting finds the in which the statement 18, 21, significant, insignificant, was made see both see ¶¶ ¶¶ on, that, goes point light ambiguities, 23. The list but the of these reach an no District Court could ever incorrect “testimonial” determination; out, way no matter which the court came it could find support majority opinion Simply put, for its result in the in this case. majority’s the leaves the approach interpretation “testimonial” predilections particular attempting apply of the cotut to it. course, majority Of the concludes that because Debra’s ¶98 “cumulative,” 26, 29, Ring Buennemeyer to and were that Debra’s ¶¶ cumulative,” n.6, “[a]rguably [were] statements to Grove ... also ¶ was, thus, error, harmless and that the admission of these statements unnecessary majority case for the to articulate see it was this ¶ and definition of testimonial. Its discussion of the precise workable Clause, testimonial, application its formulation of and its Confrontation case, therefore, nothing to facts ofthis are more ofthat formulation Notwithstanding amorphous its judicial than an extensive dictum. necessary-to however, possible-and analysis, is still gratuitous majority’s approach. shortcomings in the fundamental several address the formulations dissatisfaction with First, due either to its to its unfounded belief set forth “testimonial” Crawford against adopting courts warning” to lower contains a “tacit its formulations, majority embarks on own any of those ¶ term, see 11-23. While expedition to define the independent ¶¶ during this of times a number majority does reference Crawford mention, identify, let alone at no time does it journey, Crawford’s gave Court “numerous formulations, acknowledge that the except to testimonial, a “definitional void.” majority terms examples” of which See 11. definition of testimonial Ultimately, majority sets forth a forth the formulations set little resemblance to

that bears It conditions the determination whether Court in Supreme Crawford. (i.e., capacity on the official statement is testimonial an out-of-court to agent private party) person whom government versus thereof, knowledge her her belief as to speaking, declarant was statement, the intent of the of her her belief as to “substantive” use (if knowingly agent speaking she was she was government whom one) evidence, were to create and whether those beliefs speaking to objectively imaginative This definition flows clearly or reasonable.31 Clause majority’s mistaken belief that the Confrontation was from the perfervid police designed merely to eradicate devious declarants justice system. the criminal officers from “the two concerns majority points Specifically, prosecutorial “possible

engendered [testimonial] evidence”: opportunity “the declarant’s and overzealousness” and misconduct inquiries capacity intent the official fact that it includes into Aside from the thereof, knowledge speaking, person the declarant’s to whom the declarant was of and the declarant’s distinction between the of statements, understanding her the crucial of the substantive use of (which, majority’s third formulation formulation Crawford’s refers to is the one that what the three formulations set forth “behevefs]”) majority differing approaches The to the declarant’s belief. declarant is the concerning use of her the substantive a declarant had “reason believe” asks what statement government agent concerning to whom she the intent of the in court and/or one). (if contrast, By knowingly speaking formulation speaking the third she was made would lead under which the statement was asks what the circumstances significant, difference, reasonably but objective The which is subtle witness to believe. require the declarant approach determination of what does not is that the latter majority’s rather, actually believed; approach, it asks what she should have believed. actually hand, she believed and whether asks what the declarant on the other believed, Determining objective the declarant for that belief. what had clear or however, reason made her out-of-court possible that by when she unless she stated belief is not parties. to examination statements or she submits justice system punish, revenge abuse the criminal in order to to exact on, 15,16. Having or to shift the blame to the defendant.” identified ¶¶ confrontation, these concerns as the for the the majority basis proceeds premise only on the that a statement is testimonial when concerns are implicated-namely, “[a]ny these situation in which the knowingly speaking police government agents,” declarant to the or such “implicates since situation concerns both with the declarant’s possibility prosecutorial motivation with the misconduct.” 18. ¶ instance, police may deliberately inadvertently For “the or the color prejudices substance their statements to reflect their own understandings situation, may the selectively or record the declarant’s (Curiously, majority statements.” 18. the is not concerned ¶ private might individuals to whom statements are made do the same.) Notably, inconsistency these with which two concerns are majority’s immediately apparent in the formulation is

relevant from knowingly presumption government agent that a statement made to a objective is nontestimonial “the declarant had when reason to believe only mitigate [the] statement would serve to avert or an imminent danger.” exception majority’s or immediate 23. This to the ¶ government agent ignores opportunity standard “the declarant’s justice system,” abuse the criminal since a declarant could have ¶ “objective statement, reason though false, to believe” that her will serve only mitigate danger. Perhaps to avert or an imminent or immediate Wonderland, majority only had in mind declarants who reside in precludes telling where the motive to seek aid of untruths. U.S. Cf. (9th (911 2004), Cir. 381 F.3d caller lied to 911 v. Wilmore call”). get police respond quickly [her] “in order to operator Similarly, police there no to assume that reason will “deliberately inadvertently or color the substance of their statements” statements,” “selectively simply the declarant’s because or record objective the declarant had reason to believe that her statements would mitigate danger, or an imminent or immediate or serve avert agent because the received the statements had no intent who evidence, unknowingly spoke time to create or because the declarant government agent. But, majority’s does not aside from the fact that the formulation possible prosecutorial concerns with consistently purported reflect opportunity and a declarant’s to abuse misconduct and overzealousness on, system punish, revenge in order to to exact justice the criminal defendant, is that the important point here to shift the blame of “testimonial” to these majority’s attempt to conform its formulation led it to an incorrect statement of what constitutes two concerns has clear, Sixth “[t]he makes testimonial statement. As interpreted practices [a] focus” “that Amendment must be on 50,124 founding-era rhetoric decried.” S.Ct. ongoing the criminal “practices” Those were not abuse of in criminal justice system by declarants and excessive zealousness customary unchallenged trials but rather the use of prosecutors, certainly the at trial. The Framers were against evidence accused unchallenged engenders aware the use of evidence trial risks of that however, government agents; of and part misconduct on the declarants generalized. Mosteller, Encouraging their concern was more See and (Critics the civil-law Ensuring, practice at 571-72 of “believed ordinary presented should before the trier of fact and evidence be subjected testing, private even concern was the to the the error if of others, gave magistrate.”) accuser who their evidence the added). (emphasis Indeed, message the of the Framers right

intended the words “the accused shall ... to enjoy be Const, him,” VI, against confronted with the witnesses U.S. amend. guarantee right only an accused the to ascertain his whether accusers officer(s) police are and prosecutor(s) well-intentioned whether Rather, investigated who his case are virtuous. the core of Crawford’s history lesson is that the Framers inquisitorial abhorred “the method trial, symbolized of both development evidence the treason trial Raleigh.” Mosteller, Encouraging Ensuring, ofSir Walter 514-15 added). They (emphases judges, government like other “knew officers, always safeguard of rights could not trusted to judicial people,” they “were loath to leave too much discretion 67,124 Thus, they Crawford, sought hands.” 541 U.S. at S.Ct. at 1373. against reliability presented ensure that the of evidence at trial by testing in particular accused would “be assessed in a manner: 61, 124 crucible cross-examination.” S.Ct. at of reasons, may 1370. be unreliable for a number of such as Evidence 15-16, by majority, and those discussed those set forth see ¶¶ above, However, right procedural is a see 79-81. confrontation ¶¶ 42, 61, guarantee. Crawford, 541 U.S. at 124 S.Ct. at disdain It is in broad terms and reflects Framers’ expressed declarant, irrespective in which of her intentions procedural system accused, testimony and in which extrajudicially could bear toward the could government, irrespective agents, the zeal of its convict evidence an accused at trial. parte based on ex 105 It not Lord writing Cobham’smotivations for accusatory his letter(s)-whether they or not were “to justice system abuse the criminal on, in order punish, revenge to exact or to shift the blame to” Raleigh-with Rather, which the Framers were concerned. their objection was to the fact that Raleigh was not allowed to cross-examine thereby explore Cobham and making Cobham’smotivations in himself irony majority’s formulation, therefore, accusations. The of the judicial that a officer-not the accused-determines the declarant’s motivations, purposes, knowledge, making and/or beliefs when her out- and, worse, of-court statement to make matters does so in the absence of the declarant and subjecting any without her to examination whatsoever! sum, In possibility “prosecutorial misconduct and

overzealousness” and a “declarant’s opportunity to abuse the criminal justice system on, punish, revenge order to to exact or to shift the blame to the defendant” are byproducts system two of the civil-law rejects. which the Confrontation merely Clause It is not sufficient place a system by making band-aid over these two features of that application of the depend of confrontation on whether the situation which the out-of-court statement presented was made risks governmental manipulation part and/or maliciousness on the Rather, declarant. “testimonial” must be defined reference to the itself, system which allowed declarant to function as a “witnessO against” Thus, the extrajudicially. majority’s accused because the formulation a misinterpretation derives from of the evil at which the directed, fully Confrontation Clause was it fails safeguard to an accused from that evil.32 shortcoming majority’s Another fundamental in the approach misguided attempt polar

is its to emulate examples ofwhat Crawford’s is and is not “testimonial.” See 124 S.Ct. at (contrasting government “a formal statement to “a officers”with acquaintance”). majority casual remark to an The repeatedly distinguishes formal statements from casual remarks conversations fences, backyard with law enforcement from conversations over see 17,18,19, 20, 21,23, 27, 30; yet, provide it does not a useful method ¶¶ 32 majority great [defendants] The takes comfort in the fact that it “has afforded greater protection government agent, by presuming from statements made to a that Yet, such statements are testimonial.” 29. aside from the fact that does not ¶ speak presumption presumptions, majority explained why in terms of the has not such a agents, apply equally non-governmental should not to statements made to just easily who could prejudices color the substance of the statements to reflect their own understanding of the situation. myriad the line the other statements ascertaining on which side of examples) Friedman, (i.e., not these lie. See that do fall into those (“The statement to categories, ‘a formal Grappling, polar at 17 two acquaintance,’ plainly ‘a remark to an government officers’ and casual presenting exhaust these two does not possibilities, do not all and so testimonial and non-testimonial boundary indicate the between where lies.”). Granted, governmental are to we told that a statement a known

¶ (unless agent objective had presumed is testimonial declarant that would to avert reason to believe her statement serve or imminent immediate mitigate danger agent or and that the to whom evidence) that speaking she was had no intent to create (unless private party presumed statement to a is nontestimonial clear reason that the declarant had to believe statement would used defendant). against court as substantive See ¶ evidence However, overcome, presumptions we are not told these are how what facts in this regard, applies. are relevant what standard majority places the burden on the defendant that show State’s proffered hearsay evidence, individual, a private clearly if made to “was Yet, exclusively or intended to the majority be testimonial.” n.3. ¶ provides no assurances that the accused will to interview be able intent, prior knowledge, declarant to trial on her at the or belief time Furthermore, she made her statements. the majoritys inquiry leaves unanswered, sub-inquiries give numerous such would as what declarant “clear reason” believe that her statement would be used in (as court opposed impeachment credibility) as “substantive” or defendant, give “objective evidence what would a declarant agent specific reason” that a government to believe did have evidence, Thus, system majoritys intent to create etc. to the extent the presumptions identify dividing line between meant statements, wholly inadequate. testimonial and nontestimonial majoritys “[w]hen is the that Equally unavailing observation officials, agents are speaking government circumstances such reasonably expect government a declarant should will speaks seek to those at trial. Whereas when a declarant use fence, neighbor backyard across she has much less of an her expectation government prosecutorial make use of those will (“We do not that a declarant statements.” 18. See also assume ¶ reasonably neighbor backyard expects fence speaking to her across the testimony.”). her as Is government the will seek to use statements place backyard take fences this because conversations which over “ Or, neighbors is it consist ‘casual’ remarks”? See 21. because never ¶ 358 crimes

report repeat or statements of an accusatorial nature? Perhaps majority’s the point setting is that the the which statement was made informs expectation reasonable of the disagree rather, declarant. I do not proposition; this it is the undue emphasis majority place setting-as seems to on the well as the (versus emphasis places undue it on private) the official status of the person to whom the declarant speaking-with disagree. which I correct entirely focus-one which is majority’s absent from the analysis-is witness, on whether the declarant functioning as a which depends in turn on the nature of her statement and whether it was it) (i.e., made under circumstances where to whom she made objective would lead an witness reasonably to believe that trial, statement would be available for use at a later see Crawford, 541 52,124 1364; words, U.S. at S.Ct. at in other what should the declarant anticipated regarding have the probable prosecutorial use of her statement. Lastly, foregoing aside from the definitional problems,

majority’s above, formulation is As majority unworkable. noted claims that its applies objective n.3, formulation an standard. See 23 ¶¶ Yet, majority’s n.7. “objective” 29 references an what expect” “reasonable” declarant “would and what a declarant “should reasonably 17, 18, 20, n.3, expect,” ambiguous see are rendered ¶¶ by majority’s at best ultimate depends conclusion that “testimonial” subjective belief, on considerations: her knowledge declarant’s official capacity person speaking to whom she was and his intent evidence, understanding to create and her of the substantive use of contrary majority’s at trial. See 23. Also ¶ purported objective inquiry designed is the fact that its formulation is with the declarant’s in mind-specifically, ability motivations her “to justice system abuse the criminal punish, revenge order to to exact on, or to shift the blame to the (citing example defendant.” himself’). of this concern Cobham’s motivation “to save See also ¶¶ (referring to “the declarant’s primary motivation” “his motivation”). Thus, mystery apply majority’s it is a how a court is to objectively. Indeed, majority’s appears

“standard” throughout regularly divining33 formulation will have courts Montana analyses declarants, place The courts’ will take in the absence of the since a necessary determination of whether an out-of-court statement was “testimonial” is not present when the declarant in court to be cross-examined. to whom person did not know about did and given declarant what use regarding the substantive she what believed speaking; she was the intent and/or the defendant her statement (to to create knowingly speaking) she was agent whom government to would serve that her statement evidence; she believed and whether nothing danger, and or immediate an imminent mitigate or avert words, determination of whether other 23. In more.34 See ¶ assumptions about speculative will turn on was “testimoniar statement notwithstanding beliefs, knowledge, purposes, an absent witness’s could “[o]nly cross-examination admonition Supreme Court’s Crawford, 541 U.S. situation].” of her perception [a declarant’s reveal 66,124 at at S.Ct. 1373. clairvoyance Furthermore, will the results ofthese exercises another, reliability determinations under as did

vary judge from one Crawford, framework. See “unpredictable and inconsistent” Roberts’ such, majority’s “objective” at 1372. As U.S. at 124 S.Ct. apply as was only unpredictable is as and difficult formulation not test, test, also, jury “allow[]a to hear like the Roberts will the Roberts adversary judicial on a mere evidence, by process, based untested belief, knowledge, purpose of’ a declarant’s determination statement, 62,124 S.Ct. Crawford, 541 U.S. at making her out-of-court meaningful protection from even provide “fail[] at and thus will violations,” 124 S.Ct. at core confrontation 1371. analyzing the issue of whether an out-of-court statement By historical due consideration of the text and

was testimonial without Clause, betrayed has majority Confrontation underpinnings of the As a the common law of confrontation. afforded protection merely substitutes result, majority’s formulation of “testimonial” (a Roberts) (i.e., another test for one unworkable test). majority misapplied has doing, In so belief/knowledge/purpose case, below. to the facts of this as discussed the Confrontation Clause Issue are “Testimonial” Hearsay Statements at 3. above, “testimonial” when the a statement is explained As objective lead an that would declarant made it under circumstances formulation, majority’s that her statement the declarant’s belief Under the danger” mitigate makes the imminent or immediate “to avert or an would serve knowingly government agent statement, speaking police to whom she officer or if made to a nontestimonial, evidence, if intending but to create and who is not only purpose danger had is the she averting mitigating imminent or immediate highly such It doubtful that See 23. ¶ her statement would serve. reason believe accurately absence. made in the declarant’s a determination could be reasonably witness believe the statement would be available use at a later trial. See supra-, Crawford, 52,124 at ¶ U.S. S.Ct. words, In other what should the anticipated declarant have regarding probable prosecutorial given use of her statement statement, made, nature of her the circumstances under which it was (Again, and to whom it was made. she is deemed to have intended the actions.) consequences Here, natural of her Debra’s statements to Grove, King, Buennemeyer are testimonial. 116 Dawn Grove testified that she observed the Mizenkos arrive 3, 2003,

car at their home at approximately 4:00 P.M. on October P.M., approximately appeared door, 5:00 at her Debra with a large dog, “visibly upset” and jaw. with wound on her cheek or Grove crying. had no recollection of Debra Debra asked Grove to call 911 and another person, objection, Carol Richard. Over Grove testified that “[Debra] said that her drinking trying husband had been and was Rather, hurt her.” did let placed Grove not Debra into her home. she call to 911 on a cordless phone phone and handed the out to Debra. dispatcher. Grove did not hear Debra’s conversation with the “[my] drinking [has] Debra’s statement that husband ¶117 been and it) trying to (assuming accurately [is] [me]” hurt Grove recounted is undoubtedly First, testimonial. the nature of the statement was accusatorial, claiming crime, as Debra was victim be the of a was (domestic abuse), describing the nature of that crime and was (her husband). Granted, identifying perpetrator ofthe crime she did give place Grove a detailed account of what had taken in the afternoon, by any Mizenko home that and her statement not formal means; Indeed, compelling but it was accusatorial evidence nonetheless. prosecutor extremely compelling, found the statement to be as he repeat trial, asked it at then it repeated Grove Mizenko’s himself (“Q. you while Grovewas still on the stand And stated that he had been Yes.”), and drinking had hurt her?” “A. and then relied on it in his (“[W]hat Grove, argument jury [Debra] told Dawn what did.”). [Mizenko] Second, [Mizenko] Grove testified at trial that “I know a little Thus, very although [Debra]

bit more than I don’tknow them well.” but speaking private party, she Debra was was someone with whom relationship expectation did not have an intimate or an Mosteller, confidentiality. Encouraging Ensuring, and at 544 Cf. (“When accusatory beyond conveyed a statement is intended to be keep government it confidential-to expected those who would be functions, agents, private agencies perform government strangers length should be considered at arms witness—it from added). confidentiality testimonial.”) would An expectation (emphasis concurrent light unreasonable of Debra’s here especially have been call 911. request that Grove in motion machinery prosecutorial Third, herself set Debra trying to house, stating that Mizenko was to Grove’s

by walking over (the authorities, telling King and then call the her, asking Grove to hurt following As the arrested. Mizenko that she wanted operator) undoubtedly establishes, Debra King and Debra between colloquy intended) (and she made all of the statements understood even there, house, she left behind as well as the evidence leaving her after that she was Mizenko. use creating prosecutorial evidence going on out there? King: What’s out, me, knocked me down. pulled my hit hair

Debra: Um. He call, um, ridiculous. I can’t do this not to but this is I tried so hard anymore. your he’s out hair?

King: you pulled So he has hit I’m at the of it in the house. Debra: Yes. There’s evidence I everything else. want I the hair on the floor and neighbor’s. left him arrested! Partner for and convicted of

Significantly, Mizenko had been arrested preceding twelve Family Assault at least twice within Member Thus, there was had to have understood months.35 Debra accusing Mizenko ofthis her statement to Grove significant probability Indeed, seriously I doubt prosecutorially.36 same crime would be used resulting surprise. came as a prosecution that the length relationship with Accordingly, given Debra’s arm’s (which undeniable, Grove, incriminating nature ofher statement then it from Grove and prosecutor elicited given the fact that trial), and the fact during Mizenko’s it himself at least twice repeated County Attorney accompanying filed the Information The affidavit 23, 2003, January The District Court’s and March 2003. convictions on references Judgment Member Assault. Family previous Partner or convictions for that Mizenko had five states (see King-Ries supra) violence is observes that “domestic note Professor times before pattern repeated are assaulted seven over time. Most victims of behavior they fully from the they police, extricate themselves are not able to involve the have attempt. ... often relationship Domestic violence victims until the fifth violent justice system.” King-Ries, at criminal repeated enforcement and the contact with law omitted). experience (footnotes cases, “firsthand the victim will have And in some 319 and police, operator, doctors could knowledge statements to the 911 that her King-Ries, at 319. ha[s] them used there before.” in court she seen be used because enforcement,

that solicited the Debra involvement of law she should have realized creating that she was evidence and she should have anticipated-whether she accusatory- intended it or not-that her King statements made to Grove and for explicit purpose having again Mizenko arrested once would in prosecution be used a later him. Nevertheless, majority holds that Debra’s statements to

Grove are nontestimonial. See 27. This conclusion rests on ¶ several mischaracterizations of the nature of Debra’s statements as well as speculations supported by instance, number of not the record. For majority, sense, “Debra, using its sixth states that having fled her own ..., sought sanctuary home from step”; which to take her next that “she sought the provide”; [Grove] immediate solace that could and that she went Grove’s house order “to share the of a burden traumatic beating.” Yet, only 27. statements from Debra to in the ¶ Grove “[My] record before us are “Call 911!”and drinking [has] husband been trying [is] to hurt [me].”There is no evidence that asked for Debra rather, sanctuary; the record reflects that she asked to call Grove that, upon concluding and Carol Richard and her call to Debra home, Deputy Buennemeyer returned where found her upon arriving Moreover, at the barely scene. the record establishes that Grove knew Debra; they not were friends who shared the burdens oftraumatic other; home; events each Grove did not let Debra into her phone Grove instead handed a cordless out to and then Debra walked (Grove away testified that did hear she Debra’s conversation with call, the 911 operator); and that after the 911 Debra did not remain at Thus, plan step Grove’s house to her next or obtain solace. Debra’s they statements to Grove and the circumstances in were made which fairly cannot be characterized as a confidential conversation sharing nature of an emotional burden. majority conjectures also that Debra did not call 911 and

Carol from Richard the Mizenkos’ house because she “did not feel sufficiently Yet, secure” there. nothing there is the record to call(s). (It why explain Debra walked to Grove’shouse to make her Richard.) also unclear whether Debra called Carol the record ever What Deputy does establish is that Debra returned home to wait Buennemeyer, notwithstanding very possibility “the real that Mizenko assault,” Thus, equally continue the 27.37 would return and ¶ plausible theory why for did not call 911 and Carol Richard from Debra house is that she to her accusations Mizenkos’ wanted witness and her physical condition. majority’s portrayal The of the circumstances in which Debra Grove, therefore,

made her is the record. supported statements not Furthermore, majority reasonably while infers these provided why “suddenly] appear[ed], context for Debra had face, dog freshly and a on doorstep,” [Grove’s] tow bruised ¶ the fact that may explained presence Debra’s statements have her doorstep Rather, does not make Grove’s them nontestimonial. question is whether Debra should have understood there was a significant probability the prosecutorially. statements would be used above, For the reasons discussed she should have. Similarly unavailing majority’s is alternative cry

characterization of Debra’s statements to as “primarily Grove for help.” majority 27. It is unclear what the cry help,” means “a for particularly light of the facts requested that Debra never medical anyone assistance from (despite the fact that she had a visible wound jaw) on her cheek or and that Mizenko had left his and Debra’s house by the time of call Debra’s to 911. But even if Debra’s statements were “primarily crya help,” nontestimonial, for this does not make them cry may since a for help at the same time anbe accusatorial statement (e.g., just my purse!” “My “That man stole just husband beat me! Call 911!”)that the declarant anticipates anticipate or should will be used following colloquy King immediately ensued between and Debra after Debra stated that “I want him arrested!”: King: Okay. Okay. you is, you stay right What I I need to have do need to have Okay? [Grove’s] house. going right after, cops They Debra: I’m know— King: my- home and the can come and see me there. not, there, you’re go doing you.

You’re not to back while he’s this to Wait till gone. Debra: He’s King: my deputies- Wait till gone. Debra: He’s King: Okay. way go? Which did he went, I Debra: He King: Debra: don’t know. To Great Falls. To Belt. God knows who. Okay. you But know- King: But he’s not there now? Debra: No. Um, you to, um, King: Okay. Okay. Alright. you’re if if he want certain that there, go go home, my, ah, deputies you then ahead and back and I’ll have meet you give Okay? there so can them a statement. God, appreciate Oh I Debra: it. accusation was not problem that Debra’s prosecutorially. Is (yet undefined cry help to her another sufficiently explicit relative standard)? though noting it is worth that such speculate, are left to We (that if testimonial the accusatorial the statement premise outweighs aid-seeking aspect of the statement aspect statement) support has no in Crawford. Debra, majority naiveté to Attributing uncommon her statement “lacked reason to believe that

ultimately decides that she evidence used as substantive prosecutorially would be had by the facts that Mizenko conclusion is belied Mizenko.” 27. This ¶ Family Assault Partner or Member for and convicted of been arrested and that Debra felt preceding twelve months at least twice within alleged of the assault anymore,” left evidence “[couldn’t] she do this an intent she later house, to house with and walked over Grove’s majority argues The King have Mizenko arrested. explicitly to to stated use, likelihood, have in all she would anticipated had such “[i]f that she with 911 detail, speaking she later did when divulged greater as however, that Debra reasoning presumes, This operator King.” 27. ¶ earshot) (or nearby at least within while Grove not to remain expected alleged King, assault which “divulged greater detail” of Debra claims, house if, majority Debra went to Grove’s unlikely as the seems “immediate the burden of a solace” and “share to obtain expecting majority has stated the importantly, beating,” 27. More ¶ traumatic (i.e., her anticipation not whether Debra’s inquiry backwards: here) have led by majority should intention, “anticipation” is used as her statement, rather whether detailed but sufficiently make a her to made) (and should have in which it was the circumstances statement above, explained As use thereof. anticipate prosecutorial her to led a more Grove with providing reasons for irrespective of Debra’s Mizenko home that happened at the description of what had extensive sufficiently was afternoon, detail in Debra’s statements degree (as confirmed under the circumstances compelling and accusatorial trial) at those statements reliance on prosecutor’s subsequent make the statements testimonial. objective reason addition, “had no the assertion that Debra In used in court” since her would be anticipate that statement or believe her agent, addressing non-governmental a and

she was “in distress neighbor’s appears on folly. A woman who neighbor,” pure ¶ jaw and on her cheek a fresh wound “visibly upset” with doorstep “my husband has explaining to call neighbor asks the who me,” anticipate reason to every has trying to hurt drinking and is been husband, against her in court will be used that her statements clearly “I particularly contemplative, when she is as was Debra: can’t anymore.... suggest, do this I want him arrested!” To as does the majority, person sight that a such as Grove unaffected would be neighbor standing her doorstep of battered (such on take no action enforcement) alerting as in the law face of domestic abuse occurring just unjustified-view next door reflects a dim-and citizenry of this State. (Colo. majority Compan People 2005), cites v. 121P.3d however, In support position. Compan, for its See (Martinez)-inter alia,

statements of the victim/declarant that her frightened-were husband had hit her and that she made was to friend (Vargas) in a context that suggests reasonably expected Martinez them; rather, Vargas repeat not to the statements were made for the purpose getting safety “shar[ing] burden of emotional Mosteller, Encouraging Ensuring, event.” at getting 573. As for safety, Vargas telephone Martinez stated to over the Compan angry her, and yelling Compan her, that she feared would hit picked she wanted to up. stay Martinez also asked to Vargas’s home. Compan, 121 P.3d at 877. As for sharing the burden, Vargas picked up, when Martinez Martinez prefaced her “ explanation Compan ‘Gloria, ofwhat had done I just have to tell ” you I happening Compan, what’s been to me. can’t believe it.’ 121 P.3d By then, Compan Martinez, at 877. had hit Compan, see 121 P.3d at “ clearly Vargas “hurry, she was terrified ofhim. She asked hurry. standing right there, Get out of here. He’s and he might come ” Yet, after Compan, although hurt, me.’ 121 P.3d at 878. she was Vargas Martinez did not ask to call the police and take her to the down, hospital twenty thirty until after Martinez had calmed about or they Vargas’ minutes after had arrived at home. See Compan, P.3d at 878. contrast, hand, By above, the record in the case as discussed Thus,

establishes Grove Debra were not friends. this is not a case in purpose sharing which the declarant made statements for the reasonably the burden of an emotional event could with someone she expect contrary, keep would her statements in confidence.Tothe Debra alleged left evidence of the assault in the house and walked over assault,” majority, Grove’s“a short time after the according see (because 34, implying that her decisionto have Mizenko arrested “this ¶ anymore.”) is ridiculous. I can’t do contemporaneously this was made intent, the assault and before she made her statements. Her she explicitly King, Getting later stated was to have Mizenko arrested. safety obtaining and/or medical assistance mentioned. were never Compan majority’s the conclusion support does not Consequently, are nontestimonial. Debra’s statements “a majority the informs us that Finally, relying generalities on member, friend, family of a crime” to a made the victim statement crime, “describing acquaintance” a “loose acquaintance, an or is “nontestimonial unless or both” identifying perpetrator [the statement] will be used had clear reason to believe declarant majority proposition, for this support 30. As prosecutorially.” ¶ string citation. See Notably, none of these provides multi-page ¶ standard or referred to a “clear reason to believe” applied courts amorphous an term acquaintance^],” as “loose declarants respective Moreover, these cases do not majority leaves undefined. which the made to that statements majority’s generalization broad stand for the above, the explained As are nontestimonial. acquaintance[s]” “loose of the declarant as to whether expectation or anticipation reasonable evidentiary purposes will be used for private party her statement to a and the circumstances the nature of the statement depends on from part made. This conclusion flows under which it was formalities private parties made to discussion of statements Professor Mosteller’s Ensuring, (see 573), Encouraging and Mosteller, quoting supra, ¶ 27). (see such, the As majority favorably itself cites ¶¶ which the particular that under majority’s string proves citation made, the courts statements were particular in which the circumstances anticipated prosecutorial not have that the declarants should concluded majority’s “loose supported if But even these cases use thereof. standard, persuasive of minimal string its citation is still acquaintance” supported Europe in medieval authority,” Although “extant value. flat, determination Europeans’ persistent that the world was the view true. did not make their belief regard in this of Debra’s majority’s characterizations Accordingly, they made are under which were and the circumstances have Debra should assessment of what nothing an unrealistic but (if standard), objective majority applying reasonably expected actually intended Debra assessment of what and an inaccurate standard), (if given subjective applying majority believed which circumstances under and the her statements to Grove nature of them.38 she made observation, evidence, statements, “though majority’s that Debra’s As for requirement for a process,” no such by judicial there is not created

were 72-77, n.23. ¶¶ “testimonial.” See to be deemed statement King’s testimony, receiving she testified to dispatcher As to speaking residence at 5:30 P.M. and to 911 call from Grove about person with a at that residence.39She stated that she could not tell who actually phone. objection, King on the Over testified that “upset” she and that this person spoke was'“[w]inded” with whom her, hit person pushed [Mizenko] “said her down and she had hair,” had him pullen [sic] “[s]he hair—he out her and that wanted hearsay arrested.” These statements were testimonial for the same reasons discussed above. testified, Lastly, Deputy Buennemeyer objection, over taking

recounted Debra’s statements which were made while deputy pointing alleged around the home and out evidence of the assault. He testified that she told him the of hair in the tufts found hair, head, house “her pulled during were from her an altercation at her (see residence, 14), at that time and date.” As noted above note these statements fit the category “interrogations by within law enforcement officers,” Crawford, 541 U.S. at 124 S.Ct. at 1365. While we can Court, equivocate, Supreme as did the over what constitutes an “interrogation,” n.4,124 n.4, Crawford, see 541 U.S. at 53 S.Ct. at 1365 Buennemeyer it is clear that questions during asked Debra his investigation, that questions, gathered she answered those and that he inculpatory evidence on the questions, support basis of those all in case, the State’s Sylvia unlike officerwho took statements from 39-40, Crawford, n.4, Crawford. See 541 U.S. at & 52-53 S.Ct. at Thus, & Buennemeyer 1364-65 n.4. the statements to are testimonial as well. Because all of the in the statements issue case at hand were

testimonial, categorical applies. bar The statements were Crawford’s (1) inadmissible at Mizenko’strial unless Debra was “unavailable” (2) prior opportunity Mizenko had a to cross-examine her. See 53-54, 55-56, 59, 68,124 1365, 1366-67, S.Ct. at 1369, 1374. There is did dispute prior no Mizenko not have opportunity Accordingly, my to cross-examine I conclude Debra. could analysis perspective point under the “testimonial” at this should simply observing that the not have been However, admitted. I compelled am manner which by the Court to question “unavailability” was handled District King, According tape-recorded all such conversations are as a matter of course, prosecutor’s may copy particular recording upon request and a of a created office, as was done the case at hand. this issue.

comment on was not “Unavailable”

4. Debra M.R.Evid., “unavailability” including as 804, defines Rule ¶134 hearing and the “is absent from in which the declarant situations procure unable to statement has been of the declarant’s proponent means.” Rule or other reasonable by process declarant’s attendance Court, Supreme 804(a)(5), According to the United States M.R.Evid. hearsay introducing for predicate “as a “unavailability requires rule” unavailability showing of the declarant’s testimony either (1992), v. Illinois 502 U.S. the declarant.” White at trial of production n.6, 116 n.6, 112 L.Ed.2d S.Ct. prosecutor that the hand, record establishes In the case at unavailability and that establishing Debra’s failed to meet his burden holding prosecutor to this burden. in not Judge the District erred case, counsel moved for defense at the end of the State’s Specifically, alia, Inter insufficient evidence. guilty based on directed verdict of testified, that there was that Debra had not correctly observed counsel the State’s case testify, that she was unavailable showing no had denied his hearsay, and that his client been entirely on was based In response witness. primary the State’s to cross-examine following prosecutor offered objections, counsel’s defense absence: explanation for Debra’s she is testify, here to like the victim

Obviously, we would trying to and we have been appeared She has not subpoena. under testify. unwilling to come she’s apparently locate her but motion. defense counsel’s judge trial then denied story. End of committed reversible case law the court on Montana Based any ruling that Debra was Judge make First, District did not error. (1997), 950 P.2d 286 Mont. v. In State unavailable. Widenhofer unavailability one of the on as the failure to rule we included his discretion Judge had abused holding that the District for bases we stated: hearsay objection. Specifically, the defendant’s denying to the as inquiries Court made Although the District make a Rothschiller, did not the court availability of definitive denying defense express a basis for regard nor did it ruling in that testimony. As hearsay Officer Zarske’s objections to counsel’s District “only assume result, was forced Widenhofer witness unavailable was an ruled that Rothschiller implicitly Court 804(a)(5).” in its State Additionally, Evidence under Rule of “unavailable to Widenhofer’s respond failed to brief response why the District and, over in its confusion argument witness” “adoptive into the testimony, ventured admitted Court above, we hearsay to the rule. As set exception statement” forth either applying there was not a basis hold that for sufficient hearsay testimony. Rule proscribing rule exception general 802, M.R.Evid. added). (emphases 950 P.2d at 1390

Widenhofer, 286 Mont. Second, ad hoc determination approving the sort of encourages exactly the sort of unavailability place took here Clause, by Crawford, interpreted conduct that the Confrontation charges based on otherwise designed prevent i.e., proof of criminal — prior opportunity where there has been no inadmissible cross-examination, only minimal efforts to the State has made where (here, who, a witness secure the attendance victim/witness before trial, the State’s going support the time had recanted and was not case), prove and the State is not held to its burden to where diligent unavailability by demonstrating that it made efforts to secure the witness’s attendance. In Widenhofer, adopted requiring prosecution we standards the 804, M.R.Evid, the burden under Rule “to make a reasonable bear faith a

good procure Widenhofer, effort to attendance of witness.” (1968), (citing Page 286 Mont. at 950 P.2d at 1389 Barber v. 1318, 20 L.Ed.2d 255 719, 88 (holding that the Confrontation U.S. S.Ct. burden)). requires prosecution agreed Clause to meet this We “singularly attempts unenthusiastic” to secure a witness’s attendance satisfy government’s did not that a burden to show witness Widenhofer, P.2d at 1389. unavailable. See 286 Mont. Rather, “[t]he Sixth Amendment to the United States Constitution and II, requires [sic] Art. Section 24 of the Montana Constitution ... greater diligence attempt procure personal exercise of in the 351, 950 aprosecutionwitness.” Widenhofer, attendance of 286 Mont. at (alteration ellipsis original). specifically, P.2d at 1389 and in More we proponent stated that the of a witness must use “reasonable means” to 352-53, Widenhofer, secure the attendance. See 286 Mont. at witness’s P.2d at 1390. case, prosecutor statement In this Debra sent notarized injured any way. her in informing trial him that Mizenko had not before after believing [not] [this] that “court even be held Apparently would held, that, “jury if court statement had been read” and even were statement,” guilty seeing [her] after true [not] [Mizenko] could find Yet, up despite and did not at trial. ignored subpoena Debra her show trial that she the fact that he had a written notice from Debra before “means,” county attorney’s only “diligence,” recanting, at trial consisted of “good procuring faith effort” in Debra’s attendance following: Obviously, testify, like the victim here to and she is we would appeared trying has not been subpoena. under She we have apparently unwilling testify. to come and locate her but she’s showing rigorous If this lame excuse and meet the standards and then, Widenhofer, reality, on the in in imposed burden we State we have intellectually honest, no standard and the State has no burden. To be just should In this failed prosecutor we overrule case Widenhofer. what, long had under if subpoena; to describe how Debra been anything, doing (especially the State had done or was to locate her since recanting); long prosecutor she had notified the she was how these (if were) what, any ongoing; anything, there had if efforts been had done to ensure her at trial or to secure her appearance State testimony proceeding in a that would allow Mizenko’scounsel cross- 46-11-601, hardly argued examine her. See MCA. It can § witness, Debra, assault, material alleged the victim of the was not a entirely light depended of the fact that the State’s case particularly hearsay testimony. on her course, record questions Of none of these is answered on the utterly obligation

because the District Court failed its to hold the prove unavailability State to its burden to Debra’s and to make a Granted, entry ruling regard. definitive in that the court’s minute on morning contempt oftrial indicates that the court held Debra to find her and her to court. But this ordered sheriff deliver begs why no reasonable efforts were made to secure question morning until the prosecution’s primary attendance of the witness that, prosecution for the because ofDebra’s trial. How convenient was unwillingness” testify, to it did not have to contend with her “apparent unchallenged hearsay her testimony, recanted it was able to introduce able, therefore, testimony, statements in the cloak of sworn and was right to confront his nullify to Mizenko’s fundamental constitutional did face.40The District Court’s after-the-fact sanction accuser face to (in (see 5), prosecutor statement to the As noted above note Debra’s notarized injured any way) contradicted her Mizenko had not her in which she stated that Similarly, hearsay Grove, King, Buennemeyer. in her Victim’s to and injured thereto, Impact “was not letter attached she reiterated that she Statement and playing incident]”; rugburn “[t]he [her] chin was a result of [as of this on a result recording”; dog”; that “because her recorded statement was an “inebriated w/the of statement, job”; and that she [her] husband has lost his [her] inebriated and false Thus, victim, if [Mizenko] of this whole case and still is.” “was not the is the victim trial, prosecutor subjected the would direct and cross examination at Debra had been have had to prosecutor to out, however, things the turned contend Debra’s recantation. As confidently during closing argument [Debra] that “what state his was able to fundamental constitutional Mizenko’s absolutely nothing protect and cross-examination. rights of confrontation of me to the second focus brings This Crawford. Reliability and Multi-Factored Rejected 5. Crawford Balancing Trustworthiness directly vitality rule on the of Court did not The excited utterance at issue in the case at bar-the

hearsay exception hearsay exception 803(2), Briefly, this exception, Rule M.R.Evid. rule, by hearsay excluded that an “excited utterance” is not provides The Rule defines the declarant is available as witness. though even relating startling event or “[a] as statement an excited utterance excitement the declarant was under the stress of condition made while 803(2), by or condition.” Rule M.R.Evid. caused the event testimony “[t]he excited utterance because We have allowed spontaneity guarantee provided trustworthiness of statement, temporarily the excitement ‘... which stills the caused free conscious capacity produces of reflection and utterances of ” Hamby, 1999 MT 297 Mont. fabrication.’ State v. ¶ ¶ added). original) See also (ellipsis (emphasis 992 P.2d 26¶ Grove, jury [Mizenko] told Dawn is what did.”The never had to decide whether Debra’s contrary Grove, King, statements to the were more reliable than her statements to and Buennemeyer; for them. Court, overruling hearsay objections, the District Mizenko’s did that majority Impact The the force Statement and dismisses of Debra’s Victim’s trial, letter, pointing they [have] attached out that were “not submitted until after and statements, evidentiary propriety admitting no value as to the Debra’s various nor (Notably, majority guilt.” as to Mizenko’s document that was submitted before trial and had tremendous as to Mizenko’s makes no mention of the one ¶ evidentiary both value statements, guilt propriety admitting and as to Debra’s various jury: recanting presented but which was not Debra’s notarized letter her earlier statements.) point quoting Impact from the Victim’s Statement and attached The letter, however, made to highlight fact that had recanted the statements she had is to Debra Grove, King, Buennemeyer provided a of events that and and had new version statements, something prosecutor completely those earlier would have contradicted had Mizenko not denied his to confront the been forced to contend with been witnesses him. hearsay majority points statements contained in the also out oath, cross-examine, inability Impact Statement suffer from lack of Victim’s credibility, inability “ample opportunity” as Debra’s to reflect and to assess well course, same is true of her fabricate her statements. See 29. Of ¶ why Grove, Buennemeyer, exactly King, none Debra’s which is statements to statements should have been admitted at trial absent Moreover, confrontation. if the “ample majority truly that statements made after a declarant has had believed admitted, opportunity” then it would not affirm to reflect and fabricate should Grove, King, Buennemeyer in this case. of Debra’s statements to admission attempt Ironically, provide majority “premeditated, conscientious condemns Debra’s Statement, testimony” exculpatory Impact but not of an nature via the Victim’s provide testimony” inculpatory “premeditated, Grove, King, attempt ofan nature her via conscientious Buennemeyer. See 29. 372 (1990), 805, 820, 3139, 3149, Wright

Idaho v. 497 U.S. 110 S.Ct. (“The exception, L.Ed.2d 638 basis for the ‘excited utterance’ for given example, is that such statements are under circumstances that fabrication, confabulation, coaching, possibility eliminate the surrounding making therefore the circumstances provide statement sufficient assurance that the statement is cross-examination trustworthy and that In superfluous.”). would be words, my God, other excited utterances just are “Oh that truck hit type that child!” of statement. The State’s counsel conceded at oral argument exception premised the excited utterance on guarantees of trustworthiness. by contrast, Crawford, hearsay exception dealt with the

involving against statements interest. See 541 U.S. exception hearsay 124 S.Ct. at 1358. This allows the admission of a if statement the declarant is unavailable as a witness and the was, making, against statement at the time of its the declarant’s 804(b)(3).A against interest. See Wash. Rule Evid. statement interest subject “tend[s] includes one which the declarant to civil or criminal 804(b)(3).41 liability.” Wash. Rule Evid. exception, Like the excited utterance the statement guarantees exception

interest is rooted of trustworthiness. See State (Wash. 1990), (“[H]earsay v. Whelchel 801 P.2d against penal corroborating interest are admissible if... circumstances clearly indicate the inquiry statement’s trustworthiness.” “The into proffered trustworthiness ensures that evidence offers some reliability memory, perception, terms the declarant’s examination.”) credibility-a traditionally performed by function cross added). 804(b)(3),advisory (emphasis Seealso Fed. R. Evid. committee’s (“The procedure, mode of criminal directed was the civil-law against the ex examinations as evidence particularly parte its use of not have Second, that the Framers would accused. the Court concluded did not of testimonial statements of a witness who allowed admission had testify and the accused appear at trial unless he was unavailable cross-examine him. prior opportunity had a law, case “has proceeded The Court then to discuss its which U.S. largely principles.” Crawford, these been consistent with two noted, 57, the Court was White v. exception, at 124 S.Ct. at 1367. One (1992), 346, 736, 116 Illinois 502 U.S. 112 S.Ct. L.Ed.2d 848: arguably requiring prior in the rule

One case tension with proffered for cross-examination when the statement is opportunity Illinois, (1992), testimonial v. 502 U.S. 346 which is White involved, alia, investigating a child to an inter statements of victim police spontaneous officer admitted as declarations. It testimonial statements ever have questionable whether would 1791; hearsay ground been admissible on that to the extent the all, at it exception spontaneous required declarations existed “immediat[ely] upon the statements made the hurt be received, and had time to [the declarant] before devise or contrive case, any thing advantage.” any only question for her In own presented imposed in Whitewas whether the Confrontation Clause unavailability types hearsay of at issue. requirement on The did not certain of the holding question address the whether statements, testimonial, they had to excluded even because were be given “[took] the witness was unavailable. We as a ... that the if testimony hearsay exceptions.” the relevant properly falls within (alterations n.8, Crawford, 541 U.S. at 58 124 S.Ct. at 1368 n.8 (citations omitted). concluded, original) Thus, “[o]ur cases the Court understanding: Testimonial have ... remained faithful to the Framers’ only admitted statements of witnesses absent from trial have been unavailable, where the defendant has where the declarant is 59, Crawford, 541 U.S. at prior opportunity had a to cross-examine.” at 1369. S.Ct. had However, of the Court’s decisions while the results the Confrontation generally original meaning faithful to the of been See Clause, not said of the Court’s rationales. the same could noted that 124 S.Ct. at 1369. Court Crawford, U.S. hearsay on admissibility of all evidence whether Roberts conditions “firmly hearsay exception” falls under a rooted or bears guarantees Crawford, of See 541 U.S. “particularized trustworthiness.” approach departed at 1369. Because this from the S.Ct. above, the criticized the principles historical discussed Court test two First, broad, respects. applies the test is too as it “the same mode of analysis parte testimony.” ex whether or consists of 60,124 time, Crawford, 541 U.S. at S.Ct. at 1369. At the same the test narrow, parte is too in that it “admits statements that do consist of ex testimony upon finding reliability.” Crawford, a mere See 541 U.S. at standard,” explained, 124 S.Ct. at 1369. This “malleable the Court protect against paradigmatic “often fails to confrontation violations.” 124 S.Ct. at 1369. Observing [historical] that “none of the authorities discussed any reliability acknowledges general exception above common- confrontation],” the Court that “the [right expressed law doubt protection Framers meant to leave the Sixth Amendment’s evidence, much less notions of vagaries amorphous rules ” ‘reliability.’ Crawford, 541 U.S. at 124 S.Ct. at 1370. The Court explained that

[a]dmitting judge a is statements deemed reliable sure, To fundamentally at odds with the of confrontation. be evidence, goal reliability ultimate is to ensure but Clause’s guarantee. than a It procedural it is a rather substantive commands, reliable, reliability be not evidence be but cross- particular by testing assessed in a manner: in the crucible of judgment, thus reflects a about examination. Clause (a desirability on there could point of reliable evidence which dissent), reliability little how can best be determined. but about evidence, by the jury The Roberts test allows a to hear untested determination of adversary process, judicial based on a mere constitutionally method reliability. replaces prescribed It thus reliability wholly foreign respect, one. In this assessing with a very exceptions it different from to the Confrontation Clause is assessing surrogate claim means of that make no to be by wrongdoing]. reliability[-for example, the rule of forfeiture (citations omitted). 61-62,124 at S.Ct. at 1370 Crawford, 541 U.S. noteworthy simply did not dismiss Roberts It is that the Court Rather, to lambast an the Court continued point at this aberration. test, inability protect focusing on its demonstrated Roberts legacy “The oíRoberts in other courts vindicates right of confrontation. rejecting general reliability exception [to the Framers’ wisdom 62, 124 S.Ct. at 1371. Crawford, confrontation].” 541 U.S. at right of entirely subjective as a “Reliability amorphous, concept”; is an if not result, unpredictable that it fails to “[t]he [Roberts] framework so confrontation core violations.” provide meaningful protection from even 63,124 Crawford, 541 U.S. at S.Ct. at 1371. examples hearsay The Court then cited numerous statements

151¶ 63-65, 124 being pursuant Crawford, admitted to Roberts. 541 U.S. at hand, particular S.Ct. at 1371-72. Of interest to the case at Court in a statement more Supreme Colorado one case43found reliable issue, given “immediately after” the events at while that because was same court in another case44found a statement more reliable because 63,124 years had See elapsed. two 541 U.S. S.Ct. illustrate, hearsay pursuant As these cases the admission of statements reliability balancing completely to multi-factored tests unpredictable-e.g., passage of time makes a statement more reliable in one case and less reliable in another. point necessary digress At this it is from As noted Crawford. above, hearsay did not deal exception with at issue however, exception;

here-the excited utterance White did deal with this exception. offenses, Among charged other White was with convicted sexually assaulting 4-year-old girl. The trial court ruled that testimony recounting crime, the child’s describing given by babysitter, mother, officer, was her her investigating an emergency nurse, doctor, room and a under the admissible state- hearsay exception spontaneous (and, law respect declarations doctor, to the nurse and the also under the exception for statements treatment). made in the securing course of medical The child never testified, finding unavailability. and the trial court made no her as to objected testimony White grounds. aforementioned on White, 349-51, 112 S.Ct. at 739-40. way The case worked its Supreme United States Court that, on the issue requires of whether the Confrontation Clause before testimony a trial court “spontaneous admits under the declaration”45 43 (Colo. People 2001), 401, v. Farrell 34 P.3d 407.

44 (Colo. 2001), People Stevens v. 29 P.3d 316. 45 language spontaneous exception at issue in White is The of the declaration M.R.Evid.; White, 803(2), exception. identical to that of our excited utterance See Rule n.l, 502 U.S. at 350 112 S.Ct. at 740 n.l. rule, hearsay exceptions “medical examination”46 the declarant at trial or the trial court prosecution produce must either White, 501 U.S. at 348- must find that the declarant is unavailable. hearsay affirming admissibility In of 112 S.Ct. issue, Inadi the Court relied onRoberts and United States v. evidence at (1986), 387, 106 S.Ct. 89 L.Ed.2d 390.47 475 U.S. discussion, present the Court particular Of relevance hearsay testimony evidentiary permitting rationale for reiterated the and statements made the course regarding spontaneous declarations care, declarations are receiving medical as follows:“such out-of-court of their provide guarantees that substantial made contexts White, at 742 (emphasis 502 U.S. at S.Ct. trustworthiness.” added). these two regard, In this the Court observed “carry indicia “firmly rooted’-meaning they sufficient exceptions were by the satisfy reliability requirement posed reliability they long-standing exceptions, were Confrontation Clause’-because Evidence, widely and were recognized were in the Federal Rules n.8,112 White, at 355 S.Ct. at among the States. See 502 U.S. accepted under a qualifies that “a for admission 742 n.8. Given statement trustworthy that adversarial ‘firmly hearsay exception is so rooted’ reliability,” the Court to add little to its testing expected can be trial, aegis under the of the ultimately “exclud[e] declined to from Clause, exceptions to the embraced within such Confrontation evidence and statements spontaneous declarations hearsay rule as those for White, 112 S.Ct. at 743. treatment.” 502 U.S. made for medical soundly and Supreme Court Returning now to foregoing rationales on which White rejected each ofthe specifically testimony spontaneous offered under the upholding relied in Court utterance) (excited exceptions-i.e., and medical examination declaration reliability in that carry sufficient indicia of exceptions that these two therefore, and, that statements admitted “firmly rooted” they are trustworthy that adversarial exceptions are “so pursuant to these follows, reliability.” It [their] to add little to testing expected can be very exception language at issue in White is medical examination diagnosis purposes medical or treatment similar to that of our statements exception. n.2,112 White, 803(4), M.R.Evid.; n.2. at 351 S.Ct. at 740 502 U.S. See Rule (see 9), “So scope was clarified in Inadi: note of Roberts As noted above unavailability analysis understood, proposition Roberts stands for challenged inquiry out-of- necessary part when the Clause of the Confrontation White, judicial proceeding.” prior in the course of a were made court statements 1125). 394,106 Inadi, 354,112 (citing S.Ct. at S.Ct. at 741 U.S. at utterance therefore, grounded in the excited hearsay that evidence (for establishing the truth of of purpose is inadmissible the exception asserted) that the simple the reason matter after the Crawford of exception-guarantees of that rejected underpinnings Court trustworthiness. admissibility that the of Restated, in the Court observed White

¶156 reliability in the of such grounded declarations is spontaneous and, guarantees their “substantial particular, statements White, n.8,& 112 S.Ct. at 742 & 502 U.S. at 355 trustworthiness.” general Yet, Crawford, rejected the Framers explained n.8. as confrontation. See reliability exception right Thus, any argument that excited U.S. at 124 S.Ct. at 1371. they ground utterances should be admitted on the that bear “firmly or fall “particularized guarantees of trustworthiness” within (the hearsay ways in which an out-of-court exception” rooted two reliability’ may “adequate deemed indicia of statement to have 1359) Roberts, Crawford, 541 U.S. at 124 S.Ct. at under see completely rejection flat out of this sort of discredited Crawford’s overruling approach and its of the Roberts decision. majority agrees with this conclusion where testimonial issue, the use of (“Crawford statements are at see 31 does disallow ¶ reliability indicia of to admit hearsay exceptions based on basis but, statements.”); hearsay ... in the context of testimonial statements, majority claims that this respect to nontestimonial does not “paints dissent with too broad a brush” because “Crawford they relate to expressly impliedly supersede or the rules of evidence as evidence,” majority 31. The reads too nontestimonial ¶ Crawford narrowly. First, prior setting concept forth the of a “testimonial” confrontation, expressly the Court severed approach right evidence, analysis had been Confrontation Clause from the law of which 50-51,124 Crawford, 541 U.S. at S.Ct. approach under Roberts. See (“[W]e reject [the that Confrontation again at 1364 once the view ... introduced at trial application Clause’s] to out-of-court statements being.’ Leaving time ‘the law of Evidence for the depends upon would statements to the law of evidence regulation of out-of-court prevent even the most powerless render the Confrontation Clause (citations omitted). Thus, accept if we flagrant inquisitorial practices.”) testimonial and applies to both that of confrontation lucidity, majority, in a moment of nontestimonial statements-which to Grove to federal does, (subjecting Debra’s statements see 32-34 ¶¶ scrutiny concluding that those statements Clause after Confrontation nontestimonial) in its majority are is incorrect assertion —then they the rules of evidence as relate to supersede “does not... nontestimonial evidence.” Second, as for the does not support proposition “Crawford

expressly impliedly supersede they the rules of evidence as relate to evidence,” majority quotes following nontestimonial issue, statement from “Where nontestimonial is at Crawford: wholly design it is consistent with the Framers’ to afford the States Roberts, flexibility development hearsay in their law-as does and as approach exempted would an such statements from Confrontation 68, scrutiny at at altogether,” Crawford, Clause 541 U.S. S.Ct. language 1374. See 31. It is not clear from this whether the Court is ¶ flexibility affording suggesting possible in fact the States such two approaches-Ro&eris, exempting or nontestimonial statements from scrutiny altogether-or flexibility such Confrontation Clause whether in a holding explicit the inevitable result of the to be made subsequent opinion. majority language The concludes that the carries even more weight-specifically, requires analyzing it courts to continue hearsay “pursuant reliability nontestimonial to the Roberts standard” Supreme “expressly overrule[s] until the Court Roberts.” 31. See also ¶ however, Contrary majority’s interpretation, a careful 32. ¶ reading only “afford[s] that Roberts the States of sentence reveals flexibility hearsay This is not an development in their law.” analyzed pursuant to the [be] admonition that “nontestimonial Rather, gleaned reliability standard.” 31. the most that can be Roberts ¶ approach is language deciding from the Court’s is that it was not what respect Clause with to nontestimonial mandated Confrontation suggestion regard statements. More informative in this is the Court’s actually apply that Roberts does not opinion elsewhere in the Crawford (in analysis that its hearsay. Specifically, to such the Court stated White, holding “casts on the first which was Crawford) doubt” (and, thus, framework itself the Confrontation Clause the Roberts White, reviewing which, accepted method of at the time of was hearsay, to all whether challenges) applies Confrontation Clause Crawford, 541 U.S. at 124 S.Ct. testimonial or nontestimonial. See 352-53, In 1369-70; White, 112 S.Ct. at 740-41. other at words, may of confrontation not reach right it that the federal appears nontestimonial statements. explicit, a limitation Supreme Court makes such Until the Clause to

however, applying to continue appropriate so, above, majority does see statements. As noted nontestimonial accurately, however, defaulting-or, perhaps more 32-34; it errs in ¶¶ framework, purported basis see 31-33. regressing-to ¶¶ the Roberts v. Felton following quote Agostini from to do so is the for its decision 203, 117 1997, 138 precedent “[i]f L.Ed.2d 391: (1997), S.Ct. 521 U.S. case, yet to rest on appears in a application has direct of this Court decisions, Appeals the Court of in some other line of rejected reasons controls, directly leaving to this Court the case which should follow 237,117 decisions,” at S.Ct. 521 U.S. overruling its own prerogative omitted). (internal (alteration marks original) quotation at 2017 however, directive, requires first determination this Applying “directly in” controls” this application “has direct whether Roberts very seems, therefore, majority has assumed the case. It citation-i.e., that foregoing Roberts prove conclusion it seeks to applies to nontestimonial statements. Furthermore, reasons “appearD Roberts does not to rest on rather, decisions”;

rejected in some other line of Roberts itself Thus, Clause decisions. rejected, and in the same line of Confrontation purportedly to Debra’s majority’s applies assertion that Roberts why Roberts is an begs question nontestimonial statements safeguard of confrontation where nontestimonial adequate issue, are at but not where testimonial statements are “unpredictable,” does become less issue. The Roberts test not somehow U.S. at 124 S.Ct. at “subjective,” “amorphous,” “[vjague” less and its standards do somehow become simply “manipulable,” Crawford, 541 U.S. at 124 S.Ct. such, are As it defies because the statements at issue nontestimonial. subject are to federal logic to affirm that nontestimonial statements statements the analysis apply Clause but then to such Confrontation as an Supreme rejected Court very framework Crawford intellectually honest in its safeguard right. of that To be inadequate that, view, in its analysis, majority simply should concede from federal hearsay exempted are nontestimonial statements arguably analysis altogether-an alternative Clause Confrontation above; v. State see also Flores by Crawford, explained authorized n.l, 2005), & and cases cited (Tex.App. Amarillo S.W.3d because, admitted properly that Debra’s statements were therein-and recognized view, requirements met the majority’s they in the hearsay exception. To advocating such a result. suggest that I am I do not mean to from statements contrary, exempting rather than nontestimonial framework analysis applying the Roberts

Confrontation Clause statements, proper approach hearsay I is to assess the such believe case, exception-in exception at issue-in this the excited utterance of, for, respect and with due discussion context Crawford’s words, subjecting if for our not failings of Roberts. In other the basis to cross-examination at trial is that nontestimonial sufficiently that the statements are reliable and we feel satisfied is, trustworthy üoberfe-type balancing-which under a ofmulti-factored fact, ofaffairs-then the time has cometo reexamine the current state unpredictable approach, failings this ofwhich our comfortlevel with (and the cases to which the Court cites in Parts V.B. V.C. Crawford 63-67, Crawford, opinion) amply apparent. ofits makes See 541 U.S. Clause explained, 124 S.Ct. at 1371-73.As the Court the Confrontation desirability ofreliable evidence judgment, “reflects a (a not about dissent), reliability little about how point on which there couldbe but 61, 124 at 1370 Crawford, be determined.” 541 U.S. at S.Ct. can best added). demonstrates, leaving legacy As the of Roberts (emphasis balancing reliability judges perform open-ended determinations to who demeanor, tests rather than to fact-finders who observe a witness’s etc., renders the body language, rigors under the of cross-examination any right of confrontation bereft substance. It is true that the approach contrary This is not Crawford. nontestimonial, Crawford, in that see

statements at issue case were (“Sylvia at 1370 Crawford’s statement 541 U.S. at S.Ct. definition”), that not mean that the any testimonial under but does opinion applied cannot be reasoning rationales and of the Crawford Moreover, the Court itself took the beyond specific facts ofthat case. hearsay exceptions for business respect approach same conspiracy, in furtherance of a which records and for statements their nature were not testimonial.” noted “covered statements added). 56,124 In other (emphasis 541 U.S. at S.Ct. at 1367 hearsay exceptions words, requirements particular ofthese specific not meet the definition statements within them would meant most Mosteller, Ensuring, at 547. Encouraging of testimonial. requirements Similarly, I maintain that if the rationales (in the truth of the testimony a criminal trial to establish admitting asserted) are the hearsay exception pursuant particular matter contempt unequivocal expressed for which same as those the witnesses an accused’s to confront protecting when it comes to were “made him-i.e., the out-of-court statements trustworthiness,” guarantees oftheir provide substantial contexts that testing that “adversarial White, 112 S.Ct. at White, reliability,” statements’] [the to add little to expected can be cannot stand. exception 743-then the 357,112 S.Ct. at atU.S. goal is to ensure “ultimate Clause’s sum, the Confrontation In

¶166 than a substantive evidence, rather procedural it is a reliability but reliable, that but commands, be not that evidence It guarantee. crucible by testing in the manner: particular in a reliability assessed at 1370. 124 S.Ct. U.S. at Crawford, 541 of cross-examination.” “amorphous” balancing approach substitutes multi-factored Roberts’ “constitutionally prescribed reliability test for this “subjective” 62,63,124 S.Ct. at reliability,” Crawford, 541 U.S. assessing method of fails which “often “malleable standard” 1370,1371; incorporates a at it violations,”Crawford, 541 confrontation paradigmatic protect against reliability 1369; general a it establishes 124 S.Ct. U.S. and, confrontation; right of in the common-law recognized not exception on which principles historical from the doing, departs in so grounded. Clause is Confrontation balancing approach reasons, multi-factored these Roberts’ For confrontation; right of safeguard of an accused’s rejected

must be hearsay admitted excited utterance pursuant and statements notions they their admission on the same depend for exception-because barred at framework-must be reliability that underlie Roberts prior the defendant had a trial, is unavailable and unless the declarant prove at bar her. The facts ofthe case opportunity to cross-examine It is to by Court. concerns articulated legitimacy of the case that I now turn. aspect of this outset, to note that evidence important At the it is words, this is disputed; other Mizenko had assaulted Debra was was uncontradicted. the evidence of the assault a case where regarding entirely (particularly Furthermore, relied almost the State Grove’s, King’s, injuries) on identity of Debra’s perpetrator repeated Debra’s Buennemeyer’s testimony, which Indeed, prosecutor accusing Mizenko of the assault. evidence, you I told it’s all the given as follows:“So up summed case night, people [Debra] told you case. It is. If believe what simple added.) addition, In you.”(Emphasis Thank you guilty. need to find him from he had heard other than what Buennemeyer concededthat Deputy hearsay), he could not (hearsay within dispatcher and from the Debra Debra came from entered in evidence the hair which was tell whether Mizenko) (as being pulled out. or from testified to brushing her hair theory of State’s supported the Thus, hearsay statements evidence they offered-as only reason were crime, and that was the That Debra. he assaulted proving of the facts Mizenko’scommission (who that there was claimed only by Mizenko theory disputed not physical assault, no argument) Debra, verbal but also who changed story had her and had so informed the prosecutor writing prior 5, commencement of the trial. supra.48 See note This a perfect example why is right ¶170 “the of confrontation and cross-examination is an essential and requirement fundamental for the kind of fair trial country’s which is this goal.” constitutional Pointer v. (1965), 405, 400, 1065, 1068, Texas 380 U.S. 85 S.Ct. 13 L.Ed.2d 923. It why “[c]ross-examination is the system hallmark of our justice”-“it produces through truth” things “[s]uch as the demeanor of witness, body his or her language, hesitancy and a giving witness’s testimony, [which] often communicate as much to the fact-finder as the spoken Clark, 221, 23, 479, 23, words.” State v. MT 1998 290 Mont. ¶ ¶ 766, 964 P.2d why 23. It is in Montana ¶ the accused has the fundamental constitutional to confront his accuser “faceto face.” II, 24, Art. Sec. why constitutionally Mont. Const. It is the prescribed assessing reliability method of hearsay evidence is not a multi- factored, open-ended test, balancing rather but confrontation and cross- 61-62,124 examination. See S.Ct. at 1370. Nevertheless, the ¶171 District Court admitted Debra’s statements Grove, through King, Buennemeyer under the excited utterance exception. affirming In this ruling, majority part relies in on State (see Cameron, 32, 51, v. 2005 MT 33); 326 Mont. 106 P.3d 1189 but ¶ actually Cameron why admitting hearsay demonstrates statements on the basis of their “reliability” and soundly “trustworthiness” was rejected in Crawford. Cameron, In the trial record why prosecutor was silent as to

offered the victim’s why statement and as to the court admitted it. Cameron, appeal, 31. On up theory the State came with the that the ¶ victim’s statement had been an agreed excited utterance. We49 affirmed the reaching right result, District Court for though for an Cameron, unspecified 31-35, reason. See ¶¶ Historically, the excited utterance exception admitted “immediately] upon received, statements made the hurt [the and before any declarant] had time to devise or contrive thing her own 48 record, According jury during asked deliberations to see the letter injured prosecutor stating any Debra had written to the way. that Mizenko had not her in jury why objection also asked the letter was not entered in evidence. Without by counsel, jury’s request court trial denied the and stated that it could not answer question. the second

49 Idid not sit on this case.

383 n.8 n.8, at 1368 124 S.Ct. U.S. at 58 Crawford, 541 advantage.” (internal added) marks quotation (alterations (emphasis original) 274, 319, 26, omitted). 297 Mont. MT Hamby, ¶ v. also State (“[T]he relies on exception excited utterance 992 P.2d ¶ by the excitement caused of the statement spontaneity 414, 431, (1975), event.”) 168 Mont. added); Caryl v. State (emphasis (“Declarations speaker mind of the made while 543 P.2d accident, there aroused the excitement laboring under before ....”) added); Wigmore, (emphasis fabricate, time to reflect 1976) (“The (Chadbourn utterance, it is rev. at 199 Evidence § ‘natural,’ ‘impulsive,’ said, ‘spontaneous,’ must be commonly let extends without feeling which ‘instinctive,’ by an excited ‘generated ”). they illustrate.’ of the event from the moment or breakdown 102, 19 S.M., 11, Mont. P.3d instance, 2001 MT in In re For declarant’s five-year-old of a affirmed the admission we abuser) (that her because the upon seeing frightened she was statement event-suddenly being confronted startling “related to a statement abuser, S.M., 24; “upon seeing” it her abuser],” and she made [her ¶ startling added), perceiving [the] S.M., “while she was (emphasis 24¶ by of the excitement caused under the stress event and while she was added), had time to event,” S.M., [she] (emphases ¶ “before added). (We the statement S.M., also found reflect,” (emphasis 24¶ then-existing and the present impression sense be admissible under S.M., See 23- mental, emotional, exceptions. condition physical ¶¶ 24.) that a statement made contrast, Court determined By the Cameron alleged qualified as an excited hour or two after an assault an circumstances,” by justified “[flurther was utterance. This conclusion of this issue”-in “relevant to resolution the Court deemed which [the she left from the moment “wept the declarant particular, statement,” uttered the until well after she trailer] defendant’s home, sign no of diminished and, the declarant “showed as she arrived Cameron, 34. ¶ excitement.” may suggest indeed circumstances” “[flurther these While caused of excitement laboring under the stress declarant was “still eclipse allowed to attack,” Cameron, they cannot be

by ¶ utterances: time of excited the trustworthiness respecting crucial factor attack, “had to alleged the declarant After the reflect and fabricate. Cameron, 33. “an hour or two.” ¶ on foot” for roughly eight miles travel during stilled on the attack was to reflect capacity assert that her To Undoubtedly, upset was she disingenuous. this entire walk/run that her statements not establish but this fact does during period, this were in fact free of conscious fabrication. The Court approval also cited with various excited utterance jurisdictions

cases from other that allowed statements “up made hours,” three and a half hours,” “hours,” “two to three and “one to several hours” after respective Cameron, Yet, incidents. See ¶ this further illustrates the Court’s approach either/or to excited utterances: excited trustworthy utterance is if the statement was made either while the mind of speaker is laboring under the excitement aroused the accident or before there was time to reflect Contrary Cameron, fabricate. however, requirements these two conjunctive, are not disjunctive. Hamby, 26; Caryl, 168 Mont. at ¶ result, 543 P.2d at 398. As a Cameron cuts the excited utterance exception loose from moorings.50 its The fact is that there nothing “spontaneous” “immediate” or

about the statements made in and in Cameron the cases on which relies, and the same above, is true ofthe case at bar. As described Grove testified that she Mizenkos observed the arrive car at their home at approximately 4:00 P.M. and that at approximately P.M., 5:00 Debra appeared door, at her large with a dog, “visibly upset” and with a wound on her jaw. cheek or Grove had no crying. recollection of Debra Grove testified that “[Debra] asked me Richard, to call and Carol she said that her husband had been drinking and was trying to hurt her.” The majority finds it sufficient that these statements to Grove were made “a short event, 34; however, time” after the startling record establishes that alleged assault up occurred to 60 minutes prior Grove, to Debra’s statements to and there is no evidence that capacity Debra’s for reflection was during stilled this entire time. 911 operator King, part, for her person testified that the with whom she spoke her, [Mizenko] “said that hit pushed her down and ... pullen had hair,” [sic] out her and that him “[s]he wanted arrested.” This “excited testimony utterance” relayed King at about 5:30 P.M. And 50Notably, Supreme suggested the Court in that the excited utterance exception beyond recognition, particular has been distorted due to the relaxation of spontaneity requirement. Referring “spontaneous by the to the declarations” admitted babysitter the trial court in White-the declarant’s statement to her within a minute or event, startling startling event, two of the investigating to her mother 30 minutes after the to the roughly startling event, emergency officer 45 minutes after the and to an event, approximately startling White, room 502 U.S. exception and a nurse doctor four after hours the see 349-50, hearsay 112 S.Ct. at 739-the Court stated that “to the extent the spontaneous 1791], required for [in declarations existed at all that the ‘immediat[ely] received, upon [the declarant] statements be made the hurt and before “ any thing advantage.’ Crawford, had time to devise or contrive for her own 541 U.S. (second n.8, original). at 58 124 S.Ct. at 1368 n.8 and third alterations in had occurred utterances” that Buennemeyer recounted Debra’s “excited the home deputy her the around taking still and included even later By this alleged “excited[ly]” pointing out evidence of the assault. “devise or however, clearly had of time to time, plenty Debra had the suggest I do not to that she-or contrive” her statements. mean Indeed, Cameron, did so. whether for that matter-in fact declarant something have her statements that should not Debra contrived subject to Debra under oath and probed been Mizenko while cross-examination. Judge or Court to is not for the District for this It contrived, were not make the determination that Debra’s statements of point which is the this discussion. Thus, utterances,” at least not “excited Debra’s statements were historically-and

not that term. meaning logically-ascribed within the Nevertheless, otherwise, lapse “a majority explaining the claims caused [the of time is not determinative of whether stress of excitement by startling explanation event] This misses the has subsided.” 33. whether, point; question the not the time she made the statements Grove, elapsed longer sufficient time had such that Debra no labored (the startling alleged of caused by under the stress excitement event assault), rather stilled capacity but whether Debra’s reflection was period startling making during the entire between event and the statements, such that statements were “made under [by immediate and uncontrolled the senses the stress of domination of excitement], during period nervous when considerations brief brought fully of self-interest could have been reasoned bear (Chadbourn 1976). Wigmore, reflection.” 6 Evidence at 195 rev. § may have there is upset, While Debra the victim Cameron been no they engage thought prior evidence that did not in reflective issue; making clearly, they ample each time had wrongly do Cameron was decided. so. different may, point Be that as it to be made is this: (as foregoing judges

courts-and even different on the same court illustrate)-often reach discussions of Cameron and case at hand reliability is the different the same facts. This determinations on testimony to an admitting hearsay pursuant result inevitable if not reliability “Reliability amorphous, test. is an unpredictable bearing on There entirely subjective, concept. are countless factors 63,124 S.Ct. at Crawford, 541 U.S. at whether a statement is reliable.” vagaries of such cannot be left confrontation system. under a All of Debra’s statements were admitted which-reliability and trustworthiness exception, underpinnings balancing-the Supreme Court condemned in Mizenko was Crawford. denied his fundamental to a fair trial because the State was allowed to build its case on evidence that was not tested “inthe crucible of cross-examination” and adversary process,” “the but rather judicial was based on “a mere determination reliability.” Crawford, 61, 62, U.S. 124 S.Ct. at 1370. Because the District Court dispensed with premise confrontation on the that the excited testimony utterance obviously reliable, was effectively the court dispensed with the Mizenko trial because obviously guilty. Crawford, 541 U.S. at 124 S.Ct. at 1371 (“Dispensing with confrontation testimony because is obviously reliable is akin to dispensing jury with trial because a defendant is obviously guilty.”). Indeed, in summarily denying dismiss, Mizenko’smotion to actually District Court did find the guilty. Specifically, defendant judge stated: The Court would proof beyond that there is a reasonable find doubt that injury there was an that she and that the suffered did it. Obviously, when a victim appear, you does not

Defendant her, are to you unable confront but certainly questioned those people her, who had contact you and whether planted that out juror’s in a mind. So the Court finds there is a basis for the matter proceed. to deny We will the motion and we send will the case to jury. [Emphasis added.] case, Mizenko had not put yet even on his already court had found him guilty on the basis of “trustworthy” “reliable” and excited utterances that subjected any had not been testing adversarial And, whatsoever. to add injury, judge’s insult to observation that Mizenko “certainly questioned those people who had contact with reassuring [Debra]”is about as telling Raleigh “perfectly that he was free confront those who read Cobham’s confession in court.” 51,124 S.Ct. at 1364. “This is not what the Sixth prescribes.” Amendment Crawford, 541 U.S. at 124 S.Ct. at 1371. II, Nor does Article Section of the Montana Constitution.

III. Conclusion chin, Except photograph slight for the on bruise Debra’s entirety of the State’s case was based on out-of-court statements which were testimonial. Conveniently, contrary Debra’s statements contained in her notarized letter to the from the prosecutor kept were jury (despite jurors’ request to include those statements in their deliberations). any Because Mizenko did not at time have an Grove, opportunity to cross-examine as to her Debra “unavailable” was not Debra Buennemeyer, and because King, admitted. not have been should trial, the statements ato pursuant admitted Furthermore, statements were Debra’s her statements trustworthiness of under which the hearsay exception multi-factored, open-ended judge performing by a was assessed framework). Court, (á Supreme balancing test la the Roberts amorphous grounded however, approach, this malleable condemned by the Thus, testimony proffered “reliability,” in notions of Crawford. that owe their existence hearsay exceptions pursuant prosecution excited utterance as the standard-such same malleable in the is unavailable unless the declarant rejected, exception-must for cross-examination prior opportunity was a legal sense and there well, statements Debra’s out-of-court For this reason the defendant. admitted. not have been should confront his accuser Instead, right denied his Mizenko was because primary the State’s witness and to cross-examine

face to face Mizenko was at trial. nothing presence did to ensure her the State untested in the crucible hearsay testimony that was convicted on He convicted on adversary process. was cross-examination and judicial on a determination evidence, reliability of which was based Amendment and Clause of the Sixth and which the Confrontation II, to exclude. Article Section were meant right denial of Mizenko’s justify the District Court’s Seeking majority e-Crawford,51the place pr in a trial which took of confrontation Yet, trials. post-Crawford signals of similar violations approval its post- place trial had taken entirely plausible that if Mizenko’s greater procure made efforts to would have prosecutor Mizenko with provide of Debra at trial or to the attendance during pre-trial hearsay her statements opportunity to cross-examine hearing. For this preliminary or a deposition such as a proceeding, reason, challenges with backward- should not decide we Crawford based on seeking uphold convictions looking perspective, prosecutors testimonial statements because inadmissible designed to practices in those cases followed set Judges District Ensuring, Mosteller, Encouraging and standard. See meet a different February 3, held Mizenko’s trial was decided March 2004. so, By doing majority at 517.52 countenances the continued use of such procedures post unconstitutional -Crawford previously trials. We have held that rules of new constitutional criminal procedure apply appeal to all cases which are on direct at the time the Carter, 87, 18, 326 new rule is announced. State v. MT Mont. ¶ 18, 114 principle, P.3d 18. To be faithful to this ¶ we must unimpeded by prosecutor decide this case the fact that and the Judge District were not aware of mandates the time of Crawford’s upon foregoing analysis, Mizenko’s trial. Based I would reverse Mizenko’s conviction and remand this case to the District Court for retrial with instructions statements at issue here be excluded, given unless Debra is “unavailable” for trial and Mizenko is a prior opportunity to cross-examine her. concurrence, well-intentioned, though Justice Warner’s

fundamentally First, my colleague flawed for four reasons. makes much victims, stating give of the interests of crime the dissent “fails to Yet, sufficient consideration” he those interests. cites no provision guaranteeing testify constitutional a victim the not to Indeed, the accused. provisions the constitutional at issue generally here—and in criminal power cases restraints on the —are such, prosecutions they safeguards State its of crimes. As are persons afforded accused crimes. While it is a hard and often bitter reality, upon any Constitution does not confer victims of crimes least, explicit rights; very at the it cannot be said that the Constitution guarantees right victims the prosecutions to “victimless” based on (see hearsay testimony 1, sure, note To crime supra). be victims justifiably protection government, deserve the and and support the Legislature accordingly provided has them with a number of See, 46, 24, statutory rights. e.g., Chapter Title Montana Code (Treatment Witnesses); 46, 6, Chapter Annotated of Victims and Title (Domestic 6, Provisions); Part Montana Code Annotated Violence 46-§ victims). 18-236, However, (funding MCA of services to crime these systems period particularly fraught is “The current of transition between danger unnecessarily limited of a the confrontation will be because already backward-looking impact been concern for on the cases that have Crawford’s ‘retroactivity’ clearly opinion rules make the tried but are on direct review and where applicable. definition of put pressure appellate These cases on the lower courts to narrow the testimonial, convictions, expand exceptions preserve to to or both. This is earlier, exacting though, requirements true even confrontation could often have been of had the more been known Also, provided and the evidence introduced. a host prosecutorial taken either to admit alternative evidence or actions could have been creating admitting or evidence that violates the Confrontation Clause.” to avoid Mosteller, Encouraging (footnote omitted). Ensuring, and at 517 may protections the constitutional statutory rights supersede not criminal prosecuted to for offenses. guaranteed persons not Second, that “an must the concurrence states accused by intimidating witnesses.” hide behind the Constitution allowed to witness, fact, has, Obviously, if the accused intimidated 45-7-206, of itself a crime. See MCA. The conduct in and constitutes § the prevent and the Clause do not accused Constitution Confrontation charged from with and criminal conduct. being prosecuted such circumstances, Moreover, by wrongdoing the rule of in such forfeiture any claim he extinguish might would confrontation raise. (One exception 124 S.Ct. at 1370 to the Confrontation U.S. (which

Clause, by -wrongdoing accept)[,] “the rule of forfeiture we essentially equitable grounds.”). confrontation claims on extinguishes however, More accused is to “hide behind” the point, the allowed Constitution-or, more he is exercise his properly, allowed to why That rights. precisely rights such were enshrined constitutional is fact, right point guaranteed In the accused the the Constitution. of is to Amendment to “hide behind” Fourth the Federal Constitution II, if he and Article Sections 10 of the Montana Constitution is subject seizure; guaranteed unreasonable search he is right II, to “hide behind” Fifth Amendment and Article Section himself; if he compelled guaranteed right is to incriminate he is II, “hide if he behind” the Sixth Amendment and Article Section is counsel; he, deprived right ofhis effective assistance and most certainly, guaranteed right “hide behind” Sixth II, Article if he Amendment and Section is denied his subject exception his accusers. are protections confront These simply guy we believe the defendant is bad or because we feel because compassion for the victim. Third, the concurrence rallies behind law enforcement and

prosecutors. Again, reality prosecutors is that law enforcement and justice are ofobtaining through in the business convictions the criminal system. that, I properly job, That is their take no issue with However, job uphold is to contrary implication. to the concurrence’s our there is the To the extent that law and the Constitution. And rub. Court, any court, loopholes punches this other of convenience crimes, expect that rights persons constitutional accused of we must competitive utilized by professionals those will be in the loopholes ferreting out crime. To believe otherwise enterprise prosecuting above, As enforcement and pure naiveté. demonstrated law and already conducting are are prosecutors prosecutions “victimless” impact of modifying evidence-gathering techniques their to avoid See supra. why notes & That is this case before is us. It Crawford. simply it, is a fact “If they of life: the courts allow will come.” And brings my point. me to fourth and final There runs through the justify concurrence the theme that “the ends the means.” very thing, Domestic abuse is a acceptable bad so it is to maintain prosecutions witnesses, reason, trial,” “if appear for whatever do not concurring puts currently as the Justice it. popular among many While officials, elected this precisely mindset what our federal and state constitutions were prohibit. remarkably easy written to It is justify ignoring person’s rights constitutional when there is a perceived “greater good” to arguments always be served. Facile can be advanced applying to obviate upholding the law and the Constitution challenging, disgusting, and heartbreaking sometimes circumstances. however, approach, rings This hollow. If are to we be State and nation truly law, committed to the rule of then our constitutions must continue against to serve as a shield this philosophy expedience. doubt, advocates, enforcement, prosecutors, No victim law and majority

others will opinion great victory consider the in the battle however, Unfortunately, domestic abuse and assault. when this Court rights any given diminishes the fundamental constitutional defendant, it concomitantly rights every diminishes those same for person other in this I am deeply sympathetic problem State. with the it; yet, of domestic abuse and those who suffer from denying to those accused of these crimes one of the most fundamental and cherished of rights-the right our constitutional to confront and cross-examine one’s answer, accuser face to particularly right face-is not since the prosecutorial confrontation and the use of a victim’s out-of-court Mosteller, incompatible. Encouraging are not (As Ensuring, at 520 to declarants “such as domestic violence victims trial, frequently uncooperative who become unavailable right admissibility may by greater [confrontation] both be met early hearings, efforts to afford confrontation at adversarial such as Mosteller, preliminary depositions.”); Encouraging examinations (“In cases, Ensuring, at 610 domestic violence instead of prosecution attempting testimony, to secure more victim another approach likely approach to be more effective. This creates opportunities testimony by for the victim at the outset of the witness, prosecution, may willing right when she be a more with a defendant.”). By continuing right to riddle the cross-examination broad, “reliable,” yet hearsay exceptions, of confrontation with such that actually applies only up in effect when the declarant shows formalism,” trial, United States v. protection we reduce the to a “hollow 849, 838, 951 (1988), 98 L.Ed.2d 484 U.S. 108 S.Ct. Owens (Brennan, J., dissenting). “jousting majority dismisses this dissent The be, interesting that these may 29. While that it is to note

windmills.” ¶ Court, States presently Supreme are before the United same concerns Davis for a certiorari in State v. granted petitions which has writ of (Wash. (in Washington 2005), majority 111 of the P.3d 844 which a declarant had Supreme Court concluded that there was no evidence the desire to bear witness subjectively been motivated cert, 911), legal granted, called contemplation proceedings when she (U.S. (No. 31,2005) 05-5224); 74 3272 Oct. U.S.L.W. U.S.L.W. (in (Ind. 2005), Indiana v. 829 N.E.2d 444 which the Hammon State Supreme declarant Court concluded that whether a statement from a upon police hinge officer is testimonial will the intent making purpose police declarant in the statement and the which cert, statement), granted, officer elicited the 74 U.S.L.W. 2005) (U.S. (No. 05-5705).53 Hopefully, U.S.L.W. Oct. seek Appellate Montana Defender the criminal defense bar will time, of this case before that Court In the where review as well. mean concerned, call me defense of the fundamental of confrontation Quixote. Don I dissent. joins

JUSTICE COTTER in the dissent JUSTICE NELSON. JUSTICE COTTER dissents. I I did join foregoing dissent. I write add that majority See, as a 171-179.

participate member of in Cameron. ¶¶ analysis Having now received the benefit ofJustice Nelson’s exhaustive subject exception on the and the excited utterance Crawford rule, agree wrongly I hearsay with his conclusion that Cameron was decided. Hammon, presented respectively, “[w]hether questions are in Davis - operator naming

alleged ‘excited utterances’ under a her admitted as ‘testimonial’ to a 911 assailant victim’s statements - jurisdiction’s Taw constitute subject v. restrictions enunciated in statements Washington, the Confrontation Clause Crawford “[wjhether (2004),” made to an U.S. an oral accusation 541 officer alleged within investigating the is a testimonial statement the scene of an crime (2004).” (Obtained Washington, meaning from 541 U.S. 36 v. docket, Supreme http://www.supremecourtus.gov/docket/docket.html.) online Court’s notes rule defines those statements which are considered to be and thus of admissible against interest trustworthiness sufficient added).42 though hearsay.”) (emphasis The fact that these two even grounded “guarantees are exceptions both Court important because of how the trustworthiness” analyzed admitting hearsay evidence. particular this basis above, Supreme Court drew two inferences As discussed 804(b)(3), pertinent quoted, language part is identical to Rule In the this 804(b)(3). M.R.Evid., Fed. R. Evid. 804(b)(3), exception Rule The same is true of this under Montana law. See 332, 337, 516, 519; (1987), M.R.Evid.; In re v. 226 Mont. 735 P.2d Heisler Boule (1983), 397, 408, Marriage 206 Mont. 671 P.2d of Sarsfield from the common law the Sixth Amendment meaning about First, the Court ofthe ofconfrontation. development tradition and Clause the Confrontation principle that the evil at which determined

Case Details

Case Name: State v. Mizenko

Court Name: Montana Supreme Court

Date Published: Jan 11, 2006

Citation: 127 P.3d 458

Docket Number: 04-488

Court Abbreviation: Mont.