Third Circuit Clarifies Ohio v. Roberts Is "No Longer" Appropriate For "Nontestimonial Hearsay"

Third Circuit "now expressly follow[s] the Supreme Court‘s Confrontation Clause jurisprudence" from Davis v. Washington, 547 U.S. 813 (2006), Whorton v. Bockting, 549 U.S. 406 (2007), and Michigan v. Bryant, 562 U.S. _ (2011), and clarifies that "where nontestimonial hearsay is concerned, the Confrontation Clause has no role to play in determining the admissibility of a declarant's statement. Accordingly, the indicia of reliability test of Ohio v. Roberts, 448 U.S. 56 (1980) is no longer an appropriate vehicle for challenging admission of nontestimonial hearsay," in United States v. Berrios, __ F.3d __ (3d Cir. April 10, 2012) (Nos. 07-2818, 07-2887, 07-2888 and 07-2904)

During the last eight years, the case of Crawford v. Washington, 541 U.S. 36 (2004) has become a starting point for assessing the application of the Confrontation Clause to hearsay evidence. At the time Crawford several commentators initially questioned whether there was any residual impact on hearsay evidence through the Roberts' "indicia of reliability test." Recently the Third Circuit assessed this open question of what, if anything, of Roberts survives. The case presents a helpful review of the importance of the Confrontation Clause cases decided by the court in the past few years.

In the case, defendant Berios and four other co-defendants were convicted as perpetrators of a series of carjackings, as well as an attempted robbery and murder of a security guard. Ironically, the charged crimes occurred only a month after Crawford was decided but before any of Crawford's progeny. After the arrest of defendant Berios, authorities were able to "monitor conversations in a detention center ... as part of an unrelated investigation into criminal activity in which Berrios and [co-defendant] Moore were involved. This monitoring from the recreational yard at the defendant's detention facility provided police with evidence about the charged crimes as the defendant discussed in detail with his co-defendant, the ... shooting and getaway, and their respective roles in it." Berrios, __ F.3d at __. In the four week trial of the other defendants (referred to on the recording, but not participating in the conversation) the recording of these conversations "formed the cornerstone of the prosecution‘s case." In appealing their conviction, the co-defendant's challenged the admission of the recording.

The Third Circuit used the case as an opportunity to address what it noted as the apparent "confusion exhibited by the parties as to the proper scope of the Confrontation Clause." The circuit noted that it was important to distinguish the treatment of "testimonial versus nontestimonial statements," and their use in the prosecution of the three co-defendants who had not been recorded. Berrios, __ F.3d at __.

The circuit reviewed the various cases involving the Confrontation Clause that the Supreme Court had decided since Crawford. The court identified an open question in the circuit:

We initially interpreted the Crawford decision to overrule Roberts only insofar as testimonial statements were concerned, but continued to apply the Confrontation Clause to nontestimonial hearsay through the Roberts indicia of reliability test. To date, we have yet to circumscribe the Confrontation Clause to its core concern with testimonial hearsay, but have rather maintained that 'nontestimonial statements do not violate the Confrontation Clause and are admissible as long as' they are subject to a firmly rooted hearsay exception or bear an adequate indicia of reliability. To avoid needless confusion, we now expressly follow the Supreme Court‘s Confrontation Clause jurisprudence as laid out in the trilogy of Davis, Wharton, and Bryant: where nontestimonial hearsay is concerned, the Confrontation Clause has no role to play in determining the admissibility of a declarant‘s statement. Accordingly, the 'indicia of reliability' test of Roberts is no longer an appropriate vehicle for challenging admission of nontestimonial hearsay.
Berrios, __ F.3d at __ (citing United States v. Hendricks, 395 F.3d 173, 179 (3d Cir. 2005) ("[U]nless a particular hearsay statement qualifies as 'testimonial,' Crawford is inapplicable and Roberts still controls."); United States v. Jimenez, 513 F.3d 62, 77 (3d Cir. 2008) (non-testimonial hearsay is subject to a firmly rooted hearsay exception or must bear an adequate indicia of reliability) (citing Albrecht v. Horn, 485 F.3d 103, 134 (3d Cir. 2007) ("Unless and until the Supreme Court holds otherwise, Roberts still controls nontestimonial statements.")).


The Third Circuit not only discussed the theoretical aspects of uncoupling the Crawford jurisprudence on testimonial hearsay from the Roberts' test, but also explained that:

To say that Roberts is no longer applicable means, as a practical matter, that a challenge to the admission of nontestimonial hearsay previously within the scope of the Confrontation Clause has no constitutional foundation. For purposes of appellate review, this will require the application of a different standard of harmless error. However, it should not detract in any way from the scrutiny that nontestimonial hearsay receives under the rules of evidence. As the Roberts Court observed, 'hearsay rules and the Confrontation Clause are generally designed to protect similar values, and stem from the same roots.' 448 U.S. at 66 (internal marks and citations omitted). As admissibility under Roberts relied in part on the existence of a relevant 'firmly rooted hearsay exception,' it will often be the case that evidence courts would deem inadmissible under Roberts is also inadmissible under the rules of evidence.
Berrios, __ F.3d at __ n.2 (3d Cir. 2012) (citing United States v. Mussare, 405 F.3d 161, 168-69 (3d Cir. 2005) (determining admissibility under Bruton based on satisfaction of Federal Rule of Evidence 804(b)(3)).

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