Now I feel sorry for the guy
The price of dissent

Crawford and the Second Circuit: Redux

A couple of commenters to this post suggested that my analysis of United States v. Bruno , 383 F.3d 65 (2d Cir. 2004) is incorrect. Given that they are both experienced criminal defense lawyers, I must take their criticisms seriously. Thus, I am going to reprint my post and ask that someone show me why my analysis is incorrect. In other words, please don't say, "X case stands for Y proposition." Instead, cite specific language from the court. In Bruno I found this language compelling:

Specifically, the [Crawford] Court held that testimonial statements of witnesses absent from trial are to be admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.Id. at 78
From Crawford:
Most of the hearsay exceptions covered statements that by their nature were not testimonial—for example, business records or statements in furtherance of a conspiracy.

Crawford v. Washington, 124 S.Ct. 1354, 1367 (2004).

My reading of Crawford and Bruno is this: A statement made by a co-conspirator is testimonial to the extent that it establishes a conspiracy. Such a statement would be testimonial because it would go directly to an element of the crime (re: whether there was an agreement). This proposition is also supported by the language cited from Crawford above, namely, "statements in furtherance of a conspiracy" presupposes the existence of a conspiracy.

Moreover, Justice Scalia wrote:

The unpardonable vice of the Roberts test, however, is not its unpredictability, but its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude. [ ] Courts have invoked Roberts to admit other sorts of plainly testimonial statements despite the absence of any opportunity to cross-examine. See United States v. Aguilar, 295 F. 3d 1018, 1021–1023 (CA9 2002) (plea allocution showing existence of a conspiracy)

Id. at 1371-72 (emphasis added).

Anyhow, below please find the original post. Please show me why I'm wrong. I'd much rather be corrected by you than by a judge.

Holy toledo! Crawford is being felt in the Circuits. The Second Circuit held on Tuesday that co-conspirator statements are inadmissible against a criminal defendant unless the defendant had a prior opportunity to cross-examine the speaker. United States v. Bruno, No. 03-1349 (2d Cir., Sept. 14, 2004). Judge Miner, for Judges Katzmann and Tsoucalas, wrote:

We turn first to whether the District Court’s admission of two hearsay statements — a plea allocution and [ ] grand jury testimony — violated the Confrontation Clause of the Sixth Amendment in light of the Supreme Court’s recent decision in Crawford v. Washington. There, the Court held that the Confrontation Clause was violated when the state trial court admitted a statement made by the defendant’s wife to the police, notwithstanding the wife’s unavailability to testify at trial due to the invocation of the marital privilege. Specifically, the Court held that testimonial statements of witnesses absent from trial are to be admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine. In reaching this conclusion, the Court identified earlier lower federal court cases where testimonial statements had been admitted in contravention of its interpretation of the Confrontation Clause, including cases where a plea allocution showed the existence of a conspiracy, and cases involving the admission of grand jury testimony. *** [T]he District Court plainly erred in admitting into evidence testimonial hearsay statements that the Crawford Court expressly stated are not admissible under the Confrontation Clause. We hasten to observe that the able District Court made its rulings before the Supreme Court issued Crawford, and that only a soothsayer could have known with any certainty that the Court would change the legal landscape. That these statements were clearly admissible under our interpretation of the Confrontation Clause at the time they were admitted is of no moment, however, given that an error is plain if it is clear or obvious at the time of appellate consideration.

United States v. Bruno, 2004 WL 2039421, at *7-9 (citations and quotation marks omitted).