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Objecting to hearsay, and forgetting about the Confrontation Clause

By Richard D. Friedman

Before Crawford, it was not surprising that defense counsel sometimes failed to make Confrontation Clause objections; it wasn't clear what the Clause added to hearsay law.  But now counsel really should be more careful.  And yet some fail to do so.  A case decided yesterday by the California Court of Appeal, People v. McCormick,  underlines the point in an odd way. 

This was a robbery case.  Almost 12 weeks later, after a chance encounter, one of the victims, C.G., identified McCormick to a police officer.   C.G. did not testify at the preliminary hearing, and by the time of trial he had moved out of state.  Nevertheless, the officer testified to the identification made by C.G.  Defense counsel objected on hearsay grounds, but not on Confrontation Clause grounds. 

The court of appeal noted that the hearsay objection should have been sustained.  But oddly, the appeal was not on the basis of evidentiary error.  Rather, it appears to have been only on the ground of ineffective assistance of counsel; the lawyer also missed an obvious Miranda objection.

The court of appeal, quite properly, had no doubt that the identification statement was testimonial.  Perhaps leaning over backwards, the court held that "counsel may have made a reasonable tactical decision to forgo requiring the prosecutor to establish" that C.G. was legally unavailable.  But it asserted that the same could not be said with respect to a prior opportunity for cross-examination; plainly, there was none.  And counsel did object on hearsay grounds, so there was no plausible tactical reason not to object on Confrontation Clause grounds.  The performance was constitutionally deficient, and it was clearly prejudicial.

So it's the right result, and it should have been reachable on hearsay grounds.  But it's frustrating, 15 years after Crawford, to see defense counsel failing to be sufficiently sensitized to the Confrontation Clause to make an obvious objection.

Full post as published by The Confrontation Blog on April 26, 2019 (boomark / email).