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Letters from beyond the grave and Crawford issues that are created

By 4L

As much of the legal world and evidence students are aware, the U.S. Supreme Court in 2004 redefined the understanding of the confrontation clause of the Constitution. Since that decision, there have been probably thousands of cases dealing with the aftermath and even a blog that appears dedicated to it. And, everytime you think you've got it figured out, another twist comes up. Currently, the U.S. Supreme Court is in the midst of tackling the "forfeiture by wrongdoing" aspect of the doctrine, and I'm sure that case will undoubtedly provide further explanation of some nuance. Regardless of how it plays out, Crawford keeps lawyers busy trying to figure it out, and that's fine by me.

Anyway, I saw and interesting headline that jumped out and it will sure enough create some issues on appeal. See Letter from Dead Sister Still Haunts Brothers. The article is pretty self-explanatory, but basically, wife dies and husband is implicated some time later. Husband argues suicide, the prosecution argues murder. What gives this case a Crawford-twist, however, is a sealed letter that wife gave to a neighbor twelve days before she turned up dead. According to the article, the letter "says that her relationship with her husband is deteriorating and that 'if anything happens to me, he would be my first suspect.'" And with that, we have a suspect.

I'm not going to speculate on this elaborate set-up that wife could have done here and obviously the defense will play up her alleged depression as much as they can in order to create reasonable doubt. The question I find interesting is whether this letter, which I can only imagine was let in as an exception to hearsay, implicates Crawford. Given the contents, how is it not "testimonial?" I leave the answer for the courts to decide and the lawyers to argue.

My question, and the facts would obviously have to play out in an opinion to read sometime in the future, deals with the content. If it wasn't a letter, but instead she told it to her friends, "Hey, if were to hypothetically die soon, you should know that it probably is my husband." I see this bordering on a testimonial statement despite the context of who she is telling it to. Given the short nature of the article and the few facts it describes, however, I will simply leave this as an open question and hope that a similar issue appears before me sometime in the next few months.

Full post as published by The Once and Future Lawyer on January 20, 2008 (boomark / email).