Anderson v. State

¶1concurring.

¶2We are asked to decide whether a crime victim’s one-sentence response to a police officer’s on-the-scene question, “What happened?”, should be deemed “testimonial” for purposes of the Confrontation Clause analysis announced by the United States Supreme Court in Crawford v. Washington.1 I agree with my colleagues that this kind of out-of-court statement is not testimonial.

¶3As Justice Scalia himself conceded, his majority opinion in Crawford does not offer a precise definition of “testimonial”.2 Instead of giving us a definition, the Crawford opinion merely describes by example. One of the Supreme Court’s examples of testimonial hearsay is an out-of-court statement procured through police interrogation:

Whatever else the term [“testimonial”] covers, it applies at a minimum to prior testimony at a preliminary hearing [or] before a grand jury[; and to testimony] at a former trial; and to police interrogations.

¶4Crawford, 541 U.S. at 68, 124 S.Ct. at 1374.

¶5Interpreting the phrase “police interrogation” in its broadest sense, any answer to a question posed by a police officer might be viewed as a statement procured through police interrogation. But I conclude that such a broad interpretation of “interrogation” would be a misreading of Crawford.

¶6First, just as Crawford refused to adopt a definition of “testimonial”, Crawford likewise refused to adopt a definition of “interrogation”. True, Justice Scalia stated that he was using “interrogation” in its “colloquial” sense. But the colloquial meanings of words are normally ascertainable. In contrast, Justice Scalia appears to have used the adjective “colloquial” because he believed that it embraced a degree of uncertainty or ambiguity. That is, he wished to avoid giving a precise definition of “interrogation”:

We use the term “interrogation” in its colloquial [sense] rather than any technical legal ... sense. Cf. Rhode Island v. Innis, 446 U.S. 291, 300-01 [100 S.Ct. 1682, 64 L.Ed.2d 297] ... (1980). Just as various definitions of “testimonial” exist, one can imagine various definitions of “interrogation,” and we need not select among them in this case. [Crawford’s wife’s] recorded statement, knowingly given in response to structured police questioning, *357qualifies under any conceivable definition [of “interrogation”].

¶7Crawford, 541 U.S. at 53,124 S.Ct. at 1365 n. 4.

¶8Nevertheless, as Judge Coats points out in his majority opinion, even this vaguely contoured definition does provide insight into what the Crawford court intended by its use of the term “interrogation”. As used in everyday speech, “interrogate” has a more limited meaning than “ask” or “inquire” or even “question”. An “interrogation” is a formal, systematic questioning that is conducted to advance an official investigation or inquiry.

¶9Prisoners are interrogated. Suspects are interrogated. And, although we normally speak of witnesses being “examined” at a trial or at an inquest, one might reasonably describe this process as an interrogation. But when you happen on the scene of a traffic accident and you ask a bystander, “What happened?”, or when you see a large crowd gathered in front of a store and you ask, “What’s going on?”, these are not “interrogations”.

¶10Given Crawford’s admonishment that “interrogation” should be understood in its colloquial sense, it appears that what occurred in Anderson’s case — a police officer arriving at the scene of a reported crime and asking, “What happened here?” — does not constitute an interrogation.

¶11This conclusion is bolstered by the fact that the Supreme Court’s decision in Crawford rests on a lengthy exploration of the origins of the Confrontation Clause.

¶12As described in Crawford, the Confrontation Clause was a direct response to repeated abuses of the power of inquest — the power to force people to appear and give a statement, under oath or otherwise, to a government official or to a legislative body investigating a potential crime. According to Crawford, the abuse was not the inquest itself. (Indeed, the grand jury inquest and the coroner’s inquest are still fixtures of American law.) Rather, the abuse was that these inquisitorial proceedings were employed to obtain accusatory statements that were later introduced, as hearsay, at criminal trials. That is, these accusatory statements were used against criminal defendants, even though the makers of these statements were never brought to court so that the defendants might cross-examine them. Crawford, 541 U.S. at 42-55, 124 S.Ct. at 1359-1367.

¶13In the course of his explication of the Confrontation Clause, Justice Scalia explained why the Crawford majority concluded that police interrogations are analogous to the ex parte examinations conducted by royal officials under their inquest power:

Police interrogations bear a striking resemblance to examinations by justices of the peace in England. The statements are not sworn testimony, but the absence of oath was not dispositive. [Lord] Cobham’s examination [before the Privy Council] was unsworn, ... yet [Sir Walter] Raleigh’s trial [at which Cobham’s accusatory out-of-court statement was introduced] has long been thought a paradigmatic confrontation violation....

That [the] interrogators are police officers rather than magistrates does not change the picture either. Justices of the peace conducting examinations under the Marian statutes were not magistrates as we understand that office today, but had an essentially investigative and prosecuto-rial function.... England did not have a professional police force until the 19th century, ... so it is not surprising that other government officers performed the investigative functions now associated primarily with the police. The involvement of government officers in the production of testimonial evidence presents the same risk, whether the officers are police or justices of the peace.

¶14Crawford, 541 U.S. at 52-53, 124 S.Ct. at 1364-65 (emphasis in the original) (citations omitted).

¶15This passage from Crawford reinforces my conclusion that, when the Supreme Court used the phrase “police interrogation”, the Court was not referring to the kind of brief, on-the-scene questioning that occurred in Anderson’s case. Rather, the Supreme Court was referring to the kind of formal, systematic questioning that was characteristic of the English inquisitorial practices that *358prompted the enactment of the Confrontation Clause.

¶16This interpretation is consistent with the facts of Crawford. Michael Crawford and his wife, Sylvia, paid a visit to Richard Lee at Lee’s apartment. During this visit, Michael Crawford stabbed and killed Lee (purportedly because Lee had attempted to sexually assault Sylvia Crawford).3 Later that night, the police arrested Michael Crawford for the homicide. However, it appears that Sylvia Crawford was also suspected of having a role in this crime. According to the United States Supreme Court’s opinion, both Michael and Sylvia were given Miranda warnings, and “police detectives interrogated each of them twice”.4 According to the facts recited in the Washington Supreme Court’s opinion, all four of these interviews were taped, and the second set of interviews occurred “[s]everal hours after [the] police [conducted] the first [interviews]”.5

¶17In other words, Sylvia Crawford was subjected to prolonged and systematic police questioning regarding the homicide. And, as was true when the Privy Council interrogated Lord Cobham in its investigation of Walter Raleigh’s potential treason, the person being interrogated — Sylvia Crawford — knew that she herself was suspected of complicity in the crime under investigation.

¶18Given these facts, one can see why the Crawford majority concluded that the police interrogation of Sylvia Crawford was analogous to the type of ex parte interrogations by royal officials that took place under English law in the sixteenth, seventeenth, and eighteenth centuries — and, thus, why the Confrontation Clause barred the government from introducing evidence of Sylvia’s answers through the hearsay testimony of a police officer.

¶19In contrast, the evidence at issue in Anderson’s ease is a single sentence uttered by the victim of a crime in response to a police officer’s on-the-scene question, “What happened?” These facts do not fall within the rationale of the Crawford decision, and thus the Crawford decision does not apply to these facts.

¶20For these reasons, I agree with my colleagues that the Confrontation Clause did not bar the State from introducing hearsay testimony that the victim in this case answered the officer’s question by stating, “Joe hit me with a pipe.”