Federal Evidence Review

In involuntary manslaughter trial, the Confrontation Clause did not bar the investigating officer’s testimony as it was based “almost entirely upon his own observations and statements made to him at that time by” the defendant and the witness was cross-examined at trial “about what he had observed and what Crowe had told him,” in United States v. Crowe, 563 F.3d 969 (9th Cir. April 24, 2009) (No. 08-30173)

A recent Ninth Circuit case underscores the point that a defendant cannot object to the introduction of his or her statements under the Confrontation Clause, which are admissible as a party admission under FRE 801(d)(2)(A).

In the case, the defendant was prosecuted for involuntary manslaughter after she had an altercation with the father of their eighteen-month-old son. He did not want to remain home on New Year’s Eve and she tried to stop him from leaving. After he pusher her, she struck him with a knife. He left. When answered the door a few minutes later, she saw him collapse on the floor. She was charged with voluntary manslaughter. At trial, the government introduced evidence concerning a prior incident in which the defendant struck the victim on the head with a bottle, under FRE 404(b), to show intent. An investigating officer testified about the prior incident, including what he had observed and what she had told the officer. The defendant claimed this testimony violated the Confrontation Clause. The jury convicted the defendant on the lesser included offense of involuntary manslaughter. On appeal, she claimed the prior incident was inadmissible and that the officer’s testimony violated her Confrontation Clause rights.

In reviewing the challenge to the admission of the prior incident, the Ninth Circuit concluded that any error in admitting evidence of the prior altercation was harmless based on the jury’s acquittal on the primary voluntary manslaughter charge and conviction on the lesser included offense of involuntary manslaughter. The circuit also rejected the Confrontation Clause challenge. As the circuit noted:

“[T]he trial testimony of Officer Timothy Lingle concerning his investigation of the February 2006 incident was footed almost entirely upon his own observations and statements made to him at that time by Ms. Crowe herself. Crowe does not explain how her own out-of-court statements raise hearsay or Confrontation Clause concerns, cf. Fed. R. Evid. 801(d)(2) (admissions by party-opponent), and at trial, her counsel could—and did —cross-examine the officer about what he had observed and what Crowe had told him about the February 2006 incident.”

The case underscores that the Confrontation Clause bar the testimony of unavailable witnesses who are not subject to cross-examination. The observations of the officer did not implicate the statements of unavailable witnesses. The defendant could not complain that she was denied an opportunity to cross-examine herself.