Admission of Questions that Inescapably Imply a Non-testifying Witness’s Answers Violate Crawford.

State v. Swaney, Minn.S.Ct., 8/26/10.  Back in May, 2001, Carrie Nelson worked at Blue Mounds State Park at the park entrance where you get your visitor’s pass.  A coworker found her dead body behind the service counter; there were signs of a struggle and there was a rather large sum of cash also missing.  When DNA testing proved inconclusive the case went cold for about five years.  New DNA testing at that point suggested the presence of both Mr. & Mrs. Swaney in the park station.  Investigators also turned up both finger and palm prints of Mr. Swaney from inside the park entrance station.

During this renewed investigation, Mr. Swaney was in prison out in South Dakota.  Although Mrs. Swaney had a solid alibi, Investigators interviewed her just the same, during which they asked her about a watch and a cigarette box from a particular brand of cigarettes that had been found at the park entrance station.  Mr. Swaney asserted marital privilege and so his wife did not testify.  The state offered evidence of the questions that were asked of Mrs. Swaney, some of which implied her answers.  Here’s a good example, which focuses on the cigarette box:

Russell: I asked her if that’s what he liked, referring to the cigarettes [in the photograph].

. . . .

State: What was the next question you asked Mrs. Swaney after your question, That’s what he liked?

Russell: I asked her if she would buy cartons of those types of cigarettes.

See how this works?  Mr. Swaney consistently objected that because many of the questions implied Mrs. Swaney’s answers the questions were hearsay, admitted in violation of Mr. Swaney’s confrontation rights.  The appellate court concludes that some of the questions were exactly that, saying that testimony “that inescapably implies a non-testifying witness’s testimonial hearsay statement” violates the Confrontation Clause.  Alas, though, the admission of the evidence was harmless beyond a reasonable doubt.

Mr. Swaney presented evidence that a third party may have committed the murder; he also wanted to introduce evidence of a prior bad act – reverse Spreigl - (a kidnap and robbery) by this alternative perpetrator.  The appellate court upholds the exclusion of this evidence, offered to prove identity, saying that the other crimes were not sufficiently similar enough to the current crime in terms of time, place or modus operandi to have been admitted.  The appellate court said that the other kidnap had been for the purpose of facilitating an escape from prison whereas the kidnap here was to facilitate a robbery.  Although each crime involved the use of a weapon, the weapon in the other crime was used only to threaten the victim whereas here it was used to kill.  Lastly, because the other crime occurred some ninety miles from the state park, either time nor location are sufficiently similar. 

So, take this very parsimonious view of Spreigl evidence with you the next time the state wants to introduce Spreigl evidence.

There were some other legal issues raised, but these were the main ones.