Crawford v. State

Murphy, C. J., delivered the opinion of the Court. The sixth amendment right of an accused in a criminal case to confront the witnesses against him is a fundamental constitutional right made obligatory on the states by the fourteenth amendment to the federal constitution. 1 Dutton v. Evans, 400 U. S. 74 , 91 S. Ct. 210 , 27 L.Ed.2d 213 (1970); Pointer v. Texas, 380 U. S. 400 , 85 S. Ct. 1065 , 13 L.Ed.2d 923 (1965). The same right is secured by Art. 21 of the Maryland Declaration of Rights. 2 State v. Collins, 265 Md. 70 , 288 A. 2d 163 (1972). The issue presented in this case is whether the appellant Crawford was denied his constitutional right of confrontation when testimony of the prosecuting witness, given at a preliminary hearing, was received in evidence over his objection at his subsequent trial after it had been established that the witness was unavailable to testify.

Fourteen-year-old Cheryl Adams was beaten, shot in the head and abandoned on a highway in Washington County on September 22,1975. Crawford was arrested later that day at his father-in-law’s home in Cumberland and charged with assaulting Cheryl with intent to murder her. A revolver ²¹² containing one spent round of ammunition was found in Crawford’s Ford XL automobile, together with Cheryl’s birth card. Crawford told one officer on the night of his arrest that he had driven from his home in Washington, D.C. earlier that day bound for Cumberland and that Cheryl and her boyfriend, whose name he did not know, accompanied him in his car.

He told the officer that he had stopped at a gasoline station to get some cigarettes and when he returned to his car, Cheryl and her boyfriend had disappeared. The next day Crawford told another officer that Cheryl’s boyfriend was named Robert Rogers, and that he had accompanied them on the trip, but a disagreement developed between Cheryl and Rogers and they left the car. The only description of Rogers given to the officer by Crawford was that he was a black male. Police efforts to locate Rogers through Cheryl’s mother and landlord and Crawford’s family were unsuccessful.

Shortly after his arrest, Crawford, through counsel, requested a preliminary hearing. See Maryland Code (1957, 1976 Cum. Supp.) Art. 27, § 592. It was not until December 19, 1975 — almost three months after the offense was committed — that the preliminary hearing was held.

Cheryl appeared as a witness for the State. She testified under oath that she lived in Washington, D.C. and had known Crawford for about three years. She said that on September 22, 1975, she accompanied him in his car on a trip; that Crawford told her he wanted to stop at a place in Cumberland and needed her help to get some TV sets; that during the trip Crawford “got real quiet,” stopped the car, put a gun in his waistband, and directed her to stand on a hill and look toward their destination. Cheryl recounted that Crawford thereafter struck her from behind, shot her in the head, and then drove away.

She said that .she was alone in the car with Crawford during the entire trip. On cross-examination, Crawford’s counsel asked Cheryl whether it was correct that “There were only two people in the car during the entire trip.” She answered in the affirmative. He then asked Cheryl whether she knew “a man by the name of Robert Rogers”; she said that she did not. He next asked whether she ever heard her family “or anybody ²¹³ in your area talk of a man named Robert Rogers”; she said that she had not.

Further cross-examination revealed that Cheryl had been away from home for approximately six or seven months, living with Crawford whom she had known for approximately three years. Other questions were asked on Cheryl’s cross-examination concerning her family, where she lived, and the events of the day of the crime. Following the preliminary hearing, Crawford was indicted for assault with intent to murder. At the trial before a jury in the Circuit Court for Washington County, the State adduced evidence showing that Cheryl was unavailable to testify.

Over Crawford’s objection, the State was permitted to introduce Cheryl’s preliminary hearing testimony in evidence. After his motion for a judgment of acquittal was denied, Crawford testified that he was driving Cheryl to Cumberland on September 22,1975 to live with his relatives. He said that en route they picked up Cheryl’s boyfriend, whose nickname he then knew to be “Prees” and whose first or last name was Rogers. He said that Prees did not want Cheryl to go to Cumberland; an argument ensued, and Prees was told to leave the car.

A scuffle followed, during which Crawford took Prees’ gun from him and threw it away. Crawford testified that Cheryl left the car with Prees and he drove on alone. Shortly thereafter, he decided to return and look for Cheryl. He saw Prees on the highway but Cheryl was not with him.

He picked up Prees and together they looked for Cheryl, but did not find her. Crawford gave Prees $22 and told him to go back to Washington. Crawford then drove alone to Cumberland. The State attempted to impeach Crawford’s credibility by showing that he had an extensive and serious criminal record.

No other witnesses testified on Crawford’s behalf and the jury found him guilty of assault with intent to murder. Crawford appealed on the ground that Cheryl’s preliminary hearing testimony was improperly admitted into evidence at trial in violation of his constitutional right to confront the witnesses against him. The Court of Special Appeals, in an opinion by Judge W. Albert Menchine, extensively reviewed ²¹⁴ the authorities and concluded that the confrontation clause had not been violated. Crawford v. State, 37 Md. App. 1 , 375 A. 2d 240 (1977).

We granted certiorari to consider the important constitutional issue raised in the case. It is the primary object of the constitutional provision requiring confrontation to prevent depositions or ex parte affidavits from being used against a person accused of crime in lieu of a personal examination and cross-examination of the witnesses. Barber v. Page, 390 U. S. 719 , 88 S. Ct. 1318 , 20 L.Ed.2d 255 (1968); Mattox v. United States, 156 U. S. 237 , 15 S. Ct. 337 , 39 L. Ed. 409 (1895). The primary interest secured by the confrontation clause is the right of cross-examination; an adequate opportunity for cross-examination, therefore, may satisfy the clause in the absence of physical confrontation.

Douglas v. Alabama, 380 U. S. 415 , 85 S. Ct. 1074 , 13 L.Ed.2d 934 (1965); Pointer v. Texas, 380 U. S. 400 , 85 S. Ct. 1065 , 13 L.Ed.2d 923 (1965). In the words of Dean Wigmore, “[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination” so that where there has been due cross-examination there has been a confrontation. 5 J. Wigmore, Evidence §§ 1395, 1396 (Chadbourn rev. 1974) (emphasis in original). Consistent with these principles, we have recognized that “the right of confrontation is generally not violated when the accused has been given a prior opportunity to cross-examine the witnesses whose testimony is to be used against him.” State v. Collins, 265 Md. 70 , 288 A. 2d 163 (1972). Our predecessors have consistently held that testimony taken at a former trial may as a general rule be admitted at a subsequent trial where it is satisfactorily shown that the witness is unavailable to testify.

Contee v. State, 229 Md. 486 , 184 A. 2d 823 (1962); Bryant v. State, 207 Md. 565 , 115 A. 2d 502 (1955); Hendrix v. State, 200 Md. 380 , 90 A. 2d 186 (1952). These cases generally recognize that where an opportunity was afforded to the accused to cross-examine the witness at the former trial, there is no violation of the state or federal constitutional right of confrontation. The rule has generally been applied without distinction between the admissibility of ²¹⁵ testimony given at a former trial and testimony given at a preliminary hearing since, as Professor McCormick states: “If the accepted requirements of the administration of the oath, adequate opportunity to cross-examine on substantially the same issue, and present unavailability of the witness, are satisfied then the character of the tribunal and the form of the proceedings are immaterial, and the former testimony should be received....” McCormick, Evidence § 258 (2d ed. 1972). Other text writers are in accord.

See 2 Jones on Evidence § 9.22 (6th ed. 1972); 3 Wharton's Criminal Evidence § 650 (13th ed. 1973). The use of preliminary hearing testimony of an unavailable witness at a subsequent trial has been consistently held not to infringe upon the constitutional right of confrontation as long as there has been due cross-examination. See, e.g., Government of Virgin Islands v. Aquino, 378 F. 2d 540 (3d Cir. 1967); Butler v. Wilson, 365 F. 2d 308 (9th Cir. 1966); People v. Rojas, 125 Cal. Rptr. 357 , 542 P. 2d 229 (1975); People v. Fink, 552 P. 2d 529 (Colo.

App. 1976); Richardson v. State, 247 So. 2d 296 (Fla. 1971); People v. Horton, 65 Ill. 2d 413 , 358 N.E.2d 1121 , 3 Ill. Dec. 436 (1976); State v. Washington, 206 Kan. 336 , 479 P. 2d 833 (1971); State v. Ford, 336 So. 2d 817 (La. 1976); Commonwealth v. Mustone, 353 Mass. 490 , 233 N.E.2d 1 (1968); State v. Jacob, 222 N.W.2d 586 (N.D. 1974); Smith v. State, 546 P. 2d 267 (Okl. Cr. App. 1976); Commonwealth v. Clarkson, 438 Pa. 523 , 265 A. 2d 802 (1970); Raley v. State, 548 S.W.2d 33 (Tex.

Cr. App. 1977); Fisher v. Com., 217 Va. 808 , 232 S.E.2d 798 (1977); State v. Roebuck, 75 Wash. 2d 67 , 448 P. 2d 934 (1968). The Supreme Court has generally recognized the admissibility in a criminal trial of prior recorded testimony of an unavailable witness since at least 1895. In Mattox v. United States, 156 U. S. 237 , 15 S. Ct. 337 , 39 L. Ed. 409 (1895), the Court held that testimony given at a former trial was admissible at a subsequent trial of the same case where the witness died in the intervening period.

Rejecting the argument that the accused’s right of confrontation had been ²¹⁶ abridged, it said that the authority in favor of admitting former testimony “where the defendant was present either at the examination of the deceased witness before a committing magistrate, or upon a former trial of the same case, is overwhelming.” 156 U. S. at 241 . It said that “[t]he substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal of a cross-examination.” Id. at 244 . In Motes v. United States, 178 U. S. 458 , 20 S. Ct. 993 , 44 L. Ed. 1150 (1900), the Court, while denying admissibility of former testimony because the witness’ unavailability was due to the government's negligence, cited with approval a treatise stating that testimony given before an examining magistrate would be admissible at the subsequent trial if there had been an opportunity to cross-examine the witness at the preliminary hearing, and the witness was shown to be unavailable to testify. See also West v. Louisiana, 194 U. S. 258 , 24 S. Ct. 650 , 48 L. Ed. 965 (1904).

In Pointer v. Texas, 380 U. S. 400 , 85 S. Ct. 1065 , 13 L.Ed.2d 923 (1965), the Court held that use at trial of preliminary hearing testimony of an unavailable witness was improper where the accused had been without counsel at the preliminary hearing and did not cross-examine the witness. It observed, however, that the case would have been different had the preliminary hearing testimony of the unavailable witness “been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.” 380 U. S. at 407. In Barber v. Page, 390 U. S. 719 , 88 S. Ct. 1318 , 20 L.Ed.2d 255 (1968), the Supreme Court again recognized that the right of cross-examination initially afforded at a prior judicial hearing may provide substantial compliance with the purposes underlying the confrontation requirement. In the circumstances of that case, the Court purported to recognize a distinction between the opportunity to cross-examine afforded at trial and at a preliminary hearing.

There, Barber and an accomplice, Woods, were represented at the ²¹⁷ preliminary hearing by the same attorney. When Woods decided to testify against Barber, the attorney withdrew his representation of Woods but continued to represent Barber. He did not, however, question or cross-examine Woods at the preliminary hearing. At Barber’s subsequent trial, the State sought to introduce Woods’ preliminary hearing testimony on the ground that he was unavailable to testify.

The Court held that Woods’ unavailability had not been established and for that reason concluded that the prior testimony was improperly admitted. It observed that Barber’s failure to cross-examine Woods in such circumstances did not constitute a waiver of the right to confrontation, and that in any event the result