People v. Fisher, 2005 NY Slip Op 51726(U) (NY 10/25/2005)

• Decision Date: 25 October 2005
• Docket Number: 04-1556.
• Parties: THE PEOPLE OF THE STATE OF NEW YORK v. PAUL FISHER, Defendant.
• Court: New York Court of Appeals Court of Appeals

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2005 NY Slip Op 51726(U)

THE PEOPLE OF THE STATE OF NEW YORK v. PAUL FISHER, Defendant.

04-1556.

City Court of the City of New York, Monroe County.

Decided October 25, 2005.

Matthew Schwartz, ADA, Timothy Rath, Esq., efendant's Counsel.

THOMAS RAINBOW MORSE, J.

During his alcohol related driving trial, the defendant opposed introduction of the foundational documents customarily offered to validate the admission of the results of a breath test and subsequently objected to the results being admitted due to lack of foundation. The basis for the objections was the defendant's inability to exercise his constitutional right to confront the witnesses against him as outlined by the Supreme Court in Crawford v. Washington.¹ As this was a bench trial, the court reserved decision and in the interests of judicial economy allowed the evidence to be introduced subject to submission of papers and rendering of this opinion. Following the trial, the court reached a partial verdict on all charges except the per se DWI charge.² For the reasons that follow, the court overrules the defendant's objections to the admission of the breath test documents, allows their introduction into evidence and permits the breath test results to be considered by the court as fact finder.³

The Historical Right of Confrontation

Criminal defendants in New York enjoy co-existing state and federal constitutional rights to confront their accusers.⁴ As the Supreme Court has observed, that right "comes to us on faded parchment...with a lineage that traces back to the beginnings of Western legal culture." ⁵ Yet, while a defendant's present day adversarial right to meet an accuser "face to face" sprung from early Roman law,⁶ its course was diverted in twelfth century Europe when that and other Roman rights were supplanted by the medieval practice in "secular and ecclesiastical courts for the judge to examine each witness in secret" and then have the "transcribed testimony...read aloud in open court."⁷ While during this period the defendant did retain a truncated right to have accusers appear and be sworn in court, the witness's live testimony was received out of the defendant's presence.⁸ At the very least, however, this limited right of "confrontation" gave the defendant the opportunity to "reproach" or object to the testimony of a potentially biased witness.⁹ These ancient rights we now take for granted under the Bill of Rights were re-instituted in England during the late 17th and 18th centuries.¹⁰ During that period, English criminal trial practice took on many of the adversarial components we recognize today, including the right to have those witnesses accusing a defendant of wrongdoing appear in open court subject to cross-examination by the defendant.¹¹ This rapidly evolving adversarial process essential to English liberty interests was outlined by Blackstone in his Commentaries published between 1765 and 1769 ¹² and a commitment to those re-kindled rights burned brightly in many of those who voyaged here.

It is this recognition of a criminal defendant's long dormant right to face and cross examine accusers in open court as a colonial response to judicial abuses which the majority in Crawford asserted was the historical foundation for our Sixth Amendment.¹³ The Court observed that

the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. It was these practices that the Crown deployed in notorious treason cases like Raleigh's; that the Marian statutes invited; that English law's assertion of a right to confrontation was meant to prohibit; and that the founding-era rhetoric decried. The Sixth Amendment must be interpreted with this focus in mind.¹⁴

Thus, the Crawford majority proclaimed that when assessing the admissibility of what it termed "testimonial" evidence against an accused the Confrontation Clause "commands...reliability be assessed in a particular manner: by testing in the crucible of cross-examination." ¹⁵

The Constitutional Right to Confrontation

This confrontation right was part of the original Bill of Rights and was later added to a number of State Constitutions. It wasn't until 1965, however, that the Supreme Court announced that all States were bound by its provisions through the Fourteenth Amendment.¹⁶ Accordingly, the majority of cases interpreting the relationship between the Confrontation Clause and the admission of out-of-court statements at criminal trials have come within the last forty years. Correspondingly, the "Court's efforts to tie the Clause so directly to the hearsay rule is of fairly recent vintage,"¹⁷ gaining momentum after the Supreme Court's 1980 decision in Ohio v. Roberts.¹⁸

The mode of analysis sanctioned by Roberts required judges to determine if the hearsay being offered possessed an "adequate indicia of reliability."¹⁹ Under Roberts reasoning, reliability of an absent declarant's out-of-court statement could "be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception."²⁰ If the firmly rooted exception umbrella didn't shield the statement, it would be inadmissible unless the prosecutor could make "a showing of particularized guarantees of trustworthiness."²¹ While the Court in Roberts saw itself as adhering to almost a century of precedent,²² critics, including some Supreme Court Justices,²³ expressed concern that the Roberts Court had broken new ground in the framework it established for considering the admission of hearsay under the Confrontation Clause. Those justices became part of the majority in Crawford when the Supreme Court severely limited the applicability of the Roberts rule. Fearing that under Roberts analysis some hearsay was imprudently subjecting "the Sixth Amendment's protection to the vagaries of the rules of evidence [and] to amorphous notions of `reliability.' " the Supreme Court in Crawford found that Roberts analysis should not be used when the reliability of "testimonial" hearsay was being considered.²⁴

The Specific and Limited Ruling in Crawford v. Washington

While the sub-set of "testimonial" hearsay will no longer be admitted at trial no matter how reliable it appears unless the defendant has already cross examined the maker of the statement, Justice Scalia writing for the majority purposefully declined to specifically delineate exactly what the term "testimonial" meant. In doing so, the Crawford majority recognized that such a "refusal to articulate a comprehensive definition in this case will cause interim uncertainty."²⁵ The Court did, however, label a discrete group of four "core testimonial statements" as falling clearly under the Court's rubric of "testimonial" evidence.²⁶

Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.²⁷

Accordingly, those specific categories of formal and solemn written or recorded statements are inadmissible at trial unless the unavailability of the witness was due to the actions of the defendant.²⁸ Embedded in each of those "testimonial" statements and their historical antecedents²⁹ is the concept of a person bearing formal and solemn witness against a defendant regarding particular allegations of wrongdoing. In each of those factual settings, the witness's testimony is clearly being given "against" a specific accused regarding an identified offense. This conclusion is supported by a number of references in Crawford.

Confronting "Witnesses Against" a Defendant at Trial

First, although the plain text of the Confrontation Clause guarantees a defendant the "right...to be confronted with the witnesses against him," the Crawford Court declined to read "witnesses against" to mean all "those whose statements are offered at trial." ³⁰ In line with that reasoning, a number of recent cases have declined to extend Crawford to pre-trial or post conviction proceedings.³¹ Even when offered at trial, the Court acknowledged that "not all hearsay implicates the Sixth Amendment's core concerns."³²

The Court noted that

[t]he text of the Confrontation Clause reflects this focus. It applies to "witnesses" against the accused—in other words, those who "bear testimony." "Testimony," in turn, is typically "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.³³

As noted by the Court, what was of interest to English reformers and colonists was hearsay that had a solemn and formal nature made to government officers which accused an identified defendant of a particular crime.

Thus, the majority opinion is replete with references illustrating that the hearsay statements which particularly concerned the Court were such solemn formal accusations. Repeatedly, the Crawford majority harkened to the historical "right to confront one's accusers,"³⁴ or the right to have one's " accusers, i.e. the witnesses against him, brought before him face to face. "³⁵ The Court derided the practice which denied Raleigh the opportunity to bring his "accuser before [his] face," ³⁶ and would not allow Sir John Fenwick to "see his accuser."³⁷ It noted that colonists cherished a defendant's right "to be confronted with, or defend himself against his defamers,"³⁸ and cited to early colonial cases³⁹ including one which held that a witness should be cross-examined by "the man he accuses."⁴⁰

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