The Sixth Amendment of the U.S. Constitution provides in part that “in all criminal prosecutions the accused shall enjoy the right … to be confronted with the witnesses against him.” While a seemingly simple concept, a recent U.S. Supreme Court decision has changed the standards for determining what evidence can be used at trial against defendants. Based upon this new guidance, the N.C. Court of Appeals ruled Oct. 19 that identification from a photographic lineup is inadmissible if a defendant has not had an opportunity to cross-examine the identifier.
On Jan.8, 2002, Nellie Carlson, an elderly Raleigh woman, was assault and robbed in her apartment. Angela Lewis, a homeless person, was charged. She denied committing the crimes, but a jury convicted her of assault with a deadly weapon inflicting serious injury, non-felonious breaking or entering, and robbery with a deadly weapon.
Critical evidence in the state’s case was the statement Carlson made to police immediately after the incident and her identification of Lewis’s picture from a group of six photos shown to her at the hospital the day after the assault. Carlson died of unrelated causes before Lewis’s trial. Raleigh police officers were, however, allowed at Lewis’s trial to testify as to what Carlson had told them. On appeal, Lewis argued that her convictions should be overturned because she had not had an opportunity to confront the actual witness — Carlson — against her.
Carlson’s identification and statement to police both qualify as “hearsay.” Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Early this year in the case of Crawford v. Washington, the U.S. Supreme Court re-examined when and how different sorts of hearsay should be admitted at trials. Under previous precedent, the key factor in determining hearsay admissibility had been whether it was reliable.
In Crawford, the high court rejected that logic. “Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty,” the U.S. Supreme Court noted. “Admitting a statement deemed reliable by a judge is fundamentally at odds with the right of confrontation.”
Instead, the high court held that was key was the nature of the evidence. If it was non-testimonial in nature, then existing rules were acceptable in determining whether it should be allowed into trials. If, however, the evidence was testimonial in nature, then “the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”
The high court did not define what constituted testimonial evidence though stating that “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.” The lower courts, such as the N.C, Court of Appeals, were left to arrive at a more precise definition.
On appeal, the state argued that the convictions should be upheld because Carlson’s statement and identification were reliable. A judge panel of the Court of Appeals did not agree, finding both testimonial in nature. The court held that neither should have been admitted because Lewis never had an opportunity to cross-examine Carlson about them.
“Here [Carlson’s] statements to police were highly dependent upon her ability to recall the crime clearly, and the photographic line-up is especially susceptible to being characterized, like the evidence at issue in Crawford, as having been ‘given in response to structured police questioning,’” Judge Rick Elmore wrote for the court. “The details provided by Ms. Carlson’s statements are precisely those that would be probed and tested upon cross-examination. As such, we hold that the information obtained from the photo line-up and offered at trial through [police] constituted testimonial evidence. ”
The appeals court went on to order a new trial for Lewis as other the evidence against her was not overwhelming.
The case is State v. Lewis, (03-785).
Michael Lowrey is associate editor of Carolina Journal.