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53. At trial, which of the following evidence, if properly authenticated, may properly be admitted against the defendant over his attorney's objection that its receipt would violate the confrontation clause?
A defendant was charged with robbery of a savings and loan branch after being arrested near the scene and found with marked bills. An hour after the robbery, the officer investigating the crime videotaped an interview with an eyewitness, in which the eyewitness described the crime and the robber. The officer then arranged for a lineup, at which the teller who was robbed identified the defendant as the robber. The officer later obtained computerized records of that day's deposits and withdrawals at the savings and loan, which allowed the calculation of how much cash was taken in the robbery. A month later, the teller testified before a grand jury, which indicted the defendant. The teller and the eyewitness both died of unrelated causes shortly afterward.
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Under the Confrontation Clause, a hearsay statement will not be admitted (even if it falls within a hearsay exception) when: (i) the statement is offered against the accused in a criminal case; (ii) the declarant is unavailable; (iii) the statement is «testimonial» in nature; and (iv) the accused had no opportunity to cross-examine the declarant's «testimonial» statement prior to trial. Crawford v. Washington, 541 U.S. 36 (2004).
The following types of statements are considered testimonial under Crawford and Davis: statements made during the course of police interrogations, including interviews by police at crime scenes, as long as the focus of the interrogation is on investigating a completed crime, not on managing an ongoing emergency. See Crawford v. Washington, 541 U.S. 36 (2004).
B is correct. The issue presented by this question is whether each piece of evidence is testimonial and therefore, would it violate the Confrontation Clause if admitted against the defendant? The only evidence that is not testimonial (and therefore admissible) is the computerized records because they were not prepared for the purpose of being used in a criminal prosecution. The Crawford case specifically cites business records as an example of statements that are generally not testimonial.
A is incorrect. Because the teller's grand jury testimony (and by extension, a transcript thereof) was plainly in furtherance of a criminal prosecution against the defendant, and it would be considered a testimonial statement barred by the Confrontation Clause.
C is incorrect. The officer's statement itself does not violate the Confrontation Clause because he can be cross-examined, but the teller's identification of the defendant is testimonial because it was made in furtherance of a criminal prosecution. Although a statement may be deemed non-testimonial if made during the course of a police investigation, this is typically only when gathered to help with an ongoing emergency. Here, the identification was in furtherance of a criminal prosecution, not to help with an emergency. And, because the teller is dead, it would violate the defendant's right of confrontation to admit the teller's identification of him.
D is incorrect. The eyewitness's statement, made to a police officer, is clearly testimonial. Because the eyewitness was not cross-examined when the statement was made and cannot be cross-examined at trial (as the eyewitness is dead), the statement is inadmissible under the Confrontation Clause.