I don't wonder through here often, but I was looking for a thread someone mentioned. This isn't it.
However, a post I made there fits in here so I'll cut and paste. Here is a link to this in its original forum:
http://www.skepticalcommunity.com/phpbb2/viewtopic.php?t=668
I'm not a big fan of the current United States Supreme Court's record in criminal constitutional cases. However, it would be wrong to claim that they simply just don't care about Constitutional rights. Often we see people screaming about this awful case the Court just decided and how soon we are all going to be off to the camps. What we don't see are the cases where the Court makes a stand for Constitutional rights. Crawford is such a case.
http://supct.law.cornell.edu/supct/html/02-9410.ZO.html
In brief, Crawford dealt with a case where a man was accused of assault and attempted murder. At trial, his wife, a witness, did not testify, but the prosecution was allowed enter into evidence the statements the wife made to the police incriminating the petitioner.
In criminal law this is a common thing, especially in sexual assault and domestic battery cases, where the victim refuses or for some other reason does not testify, so the prosecution uses an earlier statement. The law governing this activity (Ohio v. Roberts) says that such evidence "may be admitted so long as it has adequate indicia of reliability–i.e., falls within a “firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness.”
For years certain lawyers (like me) have been screaming from every rooftop we could find that this sort of thing pretty much ignores the confrontation clause of the 6th Amendment. While it may be true that it can fall into a heresay exception, there is still the problem that the accused is denied the right to cross-examine an accuser in order to test how trustworhty it is. Rather the judge is able to just decide trustworthyness.
So, the Court finally has taken up the issue of whether the Roberts test is a good interpretation of the confrontation clause.
So the Court abandoned the Roberts test as it applies to testimonial statements:
We have no doubt that the courts below were acting in utmost good faith when they found reliability. The Framers, however, would not have been content to indulge this assumption. They knew that judges, like other government officers, could not always be trusted to safeguard the rights of the people; the likes of the dread Lord Jeffreys were not yet too distant a memory. They were loath to leave too much discretion in judicial hands. Cf. U.S. Const., Amdt. 6 (criminal jury trial); Amdt. 7 (civil jury trial); Ring v. Arizona, 536 U.S. 584, 611—612 (2002) (Scalia, J., concurring). By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulable, and, while that might be a small concern in run-of-the-mill assault prosecutions like this one, the Framers had an eye toward politically charged cases like Raleigh’s–great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear. It is difficult to imagine Roberts’ providing any meaningful protection in those circumstances.
Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of “testimonial.”10 Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.
In this case, the State admitted Sylvia’s testimonial statement against petitioner, despite the fact that he had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the Sixth Amendment. Roberts notwithstanding, we decline to mine the record in search of indicia of reliability. Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.
So, if a statement is "testimonial," in order for it to be admissible at trial there must be a chance to cross-examine the person making the statement.
A big question left after this case (besides the precise defintion of "testimonial") is whether this case can be applied retroactively. It would appear that since this is a substantive constitutional point and not one of procedure that it could be applied retroactively. Since there are a lot of people serving long sentences for child molestation based on this kind of rights violation, there is going to be great interest in revisiting these cases to see what can be done. The big problem is not so much finding error as it will be finding "preserved" error, as objections to evidence can easily be waived inadvertantly. Any case where a lawyer failed to make a confrontation clause objection to such testimony would likely be found by a reviewing court to have waived the objection.
But anyway, this case is an example of the present Court deciding a case on constitutiuonal principle even though it takes away a powerful prosecution tool and could result in the release of convicted child sex offenders.
Like I said, I often disagree with the Court, but I think it is unfair to claim that they are abandoning the constitution seeing that they have handed down decisions protecting the rights of the accused, in specific the right to trial by jury (The Ring case is another example. It requires a jury finding at sentencing in death penalty cases:
http://supct.law.cornell.edu/supct/html/01-488.ZO.html)
